V
M ••
._ I
THE
POLITICAL GRAMMAR
OF THE
UNITED STATES;
Oli, A
COMPLETE VIEW OF THE THEORY AND PRACTICE
OF THE
GENERAL AND STATE GOVERNMENTS,
WITH THE RELATIONS BETWEEN THEM.
DEDICATED TO THE
YOUNG MEN OF THE UNITED STATES.
BY EDWARD D. MANSFIELD,
LATE PROFESSOR OF CONSTITUTIONAL LAW IN CINCINNATI COLLEGE.
A NEW AND REVISED EDITION;
WITH THE LATEST AUTHORITIES.
ADAPTED TO THE USE OF
COLLEGES, ACADEMIES AND SCHOOLS.
CINCINNATI:
PUBLISHED BY E.D. TRUMAN,
NO. Ill MAIN ST.
1849.
Entered according to act of Congress, in
theyea> \ b*U,
by
E. D. TRUMAN
In the Clerk's Office of the Dis ict .
Jourt of Ohio.
' 3>tiW*
CINCINNATI:
gTEREOTYPED BT E. SHEPARD,
Printed by
MORGAN & OVEREND.
cX c
PREFACE TO THE SIXTEENTH EDITION.
It is now thirteen years since this work was first issued
from the press. In that time, it has been continually be-
fore the public, and has contended with the competition
of some ten or twelve other works, prepared by intelli-
gent and, in some instances, distinguished writers, for the
same purpose. The fact that it has sustained itself against
such active rivalry, and is retained in some of the best
institutions of the country, is its best recommendation.
In fact, it has always received more regard from profes-
sional teachers than the author had anticipated.
This work was prepared when nothing of the same
kind was before the public mind. In this respect, the
writer was a pioneer. His object was to create, as well
as to extend, a desire for knowledge in the great princi-
ples and constitutional law of our republican institutions.
That he has succeeded in no small degree is apparent.
Many of our Colleges," Academies and Schools, have com-
menced teaching the provisions and principles of the
Constitution, as they are written and as they have been
developed in the practice of more than half a century.
The people demand this species of instruction, and it is
hoped that it will soon be given in all the higher schools
of our country. To meet this demand, the author has re-
vised the work, and prepared this new edition, with the
latest emendations which, the advance of time and law
has made necessary.
Cincinnati, May 16^, 1849.
wm
PUBLISHER'S ADVERTISEMENT.
From the numerous recommendations of Mansfield's Political
Grammar, .the following are selected, as showing the high esti-
mation in which it is held by distinguished scholars :
"A school book containing a brief historical sketch of the political organiza-
tion of the United States, and a correct delineation of the theory and operation
of the General and State Governments, has long been desired to promote the
well-being of society and perpetuate our free institutions. We cannot expect
to carry into successful practice the fundamental principles embodied in our
Constitutions, unless a knowledge of those principles is widely diffused among
the people, and imparted in common education. Feeling much solicitude on
the subject, I have examined < The Political Grammar of the United States,'
by Edward D. Mansfield, with an eye to its adaptation to the desired end. I
am happy to say, that the Grammar, as a text book of the elementary terms,
definitions and principles of our written Constitutions, is a work of great merit,
and superior to any of the l.ind that has come under my observation. The
introduction of this valuable work into common use, and into common schools,
cannot fail of good results in the diffusion of correct political instruction, tend-
ing to the preservation of political liberty. JOHN C. WRIGHT."
«' We cordially recommend * The Political Grammar of the United
States, by Edward D. Mansfield, Esq.' The work is comprehensive; it
covers the whole ground, while it leaves out no detail necessary to illustrate
and establish the great principles of our government; and yet it is so moderate
in point of size and expense, as to be within the reach of all. It is simple and
lucid in order. Every thing in it is well digested. The style throughout is
clear and calm, though sufficiently diversified and animated to make it alway»
interesting.
" There are other books on the same subject, of larger bulk and pretensions,
but we know of none so admirably fitted for students of all classes, from the
Common School up to the University. As a brief practical manual. of sound
political knowledge, it ought to be in the hands of all the people.
B. P. AYDELOTT, D. D., late President of Woodward College.
WILLIAM H. McGUFFEY, Professor in the University of Virginia, ■
C. E. STOWE, Professor in Lane Seminary, Cincinnati, author of
4 Report on Prussian System of Education.1 "
From the Muskingum County Lyceum.
The following notice of the Political Grammar is from a Committee of the
Muskingum County Lyceum of Practical Teachers, who reported on books
suitable to be used in Schools, Academies, &c:
* * * M The School House is the proper place to lay the foundation of a
correct knowledge of political science; and for this reason the Committee have
thought proper to call your attention to the subject, and to introduce to you the
♦ Political Grammar,' not alone as the best, but as the only work within their
knowledge, really deserving the name of a political class book. It is elementa-
ry and logical; and no book can more clearly give the outlines of any science,
than it gives those of political law and action; and your Committee feel confi-
dent that its general introduction into our schools and colleges, will tend more
to secure the future stability, glory and happiness of our country, than almost any
other event; and they cannot omit this opportunity of expressing theii thanks to
its talented and distinguished author, for the invaluable acquisition to the school-
masters' usefulness and influence, with which this volume furnishes them."
INDEX.
A SECTION.
Accounts, - 238
Adjournment — neither House can adjourn without
the other's consent, - - - * 89, 90
.Adjutant General, 531
Alabama, when admitted, - - . -
Alien, -
Amendments, -
Arkansas, when admitted,
Arms, right of the people to bear,
Arrest, privilege from,
Attorney General,
Bail, excessive, - 431
Bill of Attainder, 234,249
Bills of Credit, 245, 248
Bills for Revenue, where must originate, - 102, 104
Bounty Land Office, - - . - - - 531
- 147-149, 153
411-413,423-434
463
- 427
91,93-99
- 544
Capitation Tax, ....
Census,
Charter Governments,
Charge d' Affaires,
Citizens of each state, privileges of,
Citizenship,
Colonies, forms of government in, -
Coining Money, right of,
Compact, or Agreement with another
a foreign state, forbidden,
Confederation of 1643, -
235
- 47
3
- 416
399, 400
- 343-346
■ • - 2
- 244
state, or with
- 272, 282
- 17-19
viii INDEX.
E
Elections for Senators and Representatives, times,
places and manner of holding, - - 72, 73
Election returns, and qualifications of members of *
Congress, • 76, 78
Electors of President, how chosen, - 288, 289, 297
Embassador, what, 514
Engineer Department, 531
Executive of the United States, who, - - 286, 287
Ex post facto law, 234
Expulsion of members of Congress, what for, - 82
Electors in Ohio, who, ..... 479
Envoy, who, 515
Executive, duties of, - - - 508,509,510
Executive power, 582
F
Fugitives from justice, - -' - 399-401
Foreign intercourse, 456
Florida, received as a state, - - - - 463
g
Government of the U. States, is a republic, - 489
" is a federative republic, 490
" is a democratic federa-
tive republic, - 491
u " " is sovereign in its na-
tional capacity, - 500
" " " is not a mere league, 499
" " sanction of, is responsi-
bility to the people, 494
" " " principle of, is the vir-
tue of the people, 495
" u " foundation of, is the con-
sent of the people, 493
Governments of the states are sovereign in a munici-
pal capacity, - - - - - - 501
Georgia ratified the Constitution, - - - 463
INDEX IX
H
House of Representatives, how composed, - 37
u " power of impeachment, 50-53
Habeas Corpus, Writ of, ... 230-233
High Seas, 187
Home Department, 535
I
Imprisonment, judgment upon, ... 70
Importation of slaves, .... 228, 229
Imposts and duties, states forbidden to lay, without
consent of Congress, - - - 272, 275, 277
Inspection laws, 273, 275
Importation laws, 272, 273
Indian Bureau, 535
Indian Relations, 540
Illinois received, 463
Indiana received, - - - - - 463
Iowa received, 463
J
Journal of proceedings in Congress, - - 87
Judiciary of the United States, how constituted, - 329
" " " how organized, - 561
" " " its object, - 562
" " " its officers, - 563
;' " " its process, - 560
" " " its mode of executing
judgment, - 586
Judiciary, Supreme Court, - - - 324, 325
" inferior Courts, what, - - 326
" Circuit Courts, how organized, - 326
" District Courts, how organized, - - 327
" compensation of Judges, - - 324, 328
Judicial power, how far it extends, - - 329. 382
Judicial functions, 382
Jurisdiction, Common Law, - - - - 370
" Admiralty and Maritime, - ' - 371-381
Justice of the Peace, 575
Judiciary of Ohio, - 478
INDEX.
Kentucky received,
K
463
Land Office.
Lands, mode of survey,
Laws, preservation of,
League of 1643,
Letters of Marque,
Legislature, operation of,
" rules of, -
Legislation, manner of,.
" business of,
Louisiana received,
M
Moneys, how drawn from the treasury,
Mint, ----,.
Marshal, office of,
Maine received as a state, -
Maryland ratified, -
Massachusetts ratified, . - - - -
Michigan received,
Missouri received, -----
Mississippi received,
N
Navy, commissioners of, -
u department of, -
New states,
National Government, powers of, -
New Hampshire, ratified Constitution,
New Jersey, " "
New York, " "
North Carolina, " " - -
O
Ordinance of 1787, at large — page 228.
Order, resolution and vote of Congress, must
signed by the President,
Oath to support the Constitution,
- 535
537
- 511
6, 17-19
- 243
547
- 558
547-560
- 551
403
237
545
565
463
463
463
463
463
46;
- 533
532
403-406
580
463
463
463
463
he
109,110
418-420
INDEX. XI
Ordnance Department, 531
Operation of the Government, when begun, - 505
Ohio received, 463
Proprietary Governments, .... 4
Patent Rights, 181, 182
Priority of payment, .... 222-224
Presents, 239,240
President, 286,287
" mode of electing, - - 286-292, 293, 296
" qualifications of, 298, 299
" who shall fill his place in case of removal, 300
u vacancy in the office of, - - - 301
" compensation of, - - - - 302
« oath of, 303
" power of, to pardon, - 304, 306
" power of, to command, the army and
navy, 304,305
" power of, to make treaties, - 307-309
" power of appointment, - 307,310-316
" to give information to Congress, - 317,318
iC to convene Congress, - 317,319
" to execute the laws, .... 320
11 to receive embassadors, - - 317,321
" may be impeached, .... 323.
Pay Department, 334
Pension, 535
Petition, the right of the people to, - 424. 426
Plan of 1754, - - ' - - - - 20,21
Patents, 541
Private*property, how taken, - « - - 390
Press, its freedom, 425
Post-office Department, 534
Postmaster-General, - - - - - 534
Powers not delegated, ----- 433
Public acts, records, and judicial proceedings, 396-398
Purchasing Department, - - - - - 531
, Public ministers, who they are, - - - 513
XU INDEX.
Public ministers, credentials of, - - - 521
" ." privileges, - - - 523-525
" " instructions of, ... 522
Piracy, what, 185,186
Passports, ------- 528
Patents, commissioner of, - * - - - 541
Presidential election, states voting in, - - 466
Pennsylvania, ratified, 463
Q
Quartermaster General, - - 531
Quorum, ----- 77
R
Ratifications, - 422
Ratification of the Constitution, - 435-458
Religion, Congress can make no law respecting, 425
Religious test, - - - 421
Republican form of government guaranteed, - - 467
Requisition Bureau, - - - 531
Royal governments, 5
Rights, enumeration, does not disparage, - 432
Representatives to Cong., who shall be electors of, 37, 38
•" qualifications of, - - 29-41
apportionment of, - 42, 43, 46
" mode of electing, - 45
Rules of proceeding, each House determines, 79, 80
Rules and regulations of territories, - 403,407-410
S
Settlement of America, - - - 1
Senate of the United States, how composed, 54, 55
" " how chosen, - 56
" " how divided, - * 57, 58
" " vacancies, - - 57, 59
" « President of, - 62-66
11 a power to try impeach-
ments, - 77-69, 71
Senators, qualifications of, - - 60,61
Senators and Representatives, compensation of, 91, 92
« " privileges of, 91,93-98
INDEX. Xlll
Senators and Representatives shall not be appoint-
ed to office, 99-101
States, restrictions on, - 241, 242, 272, 281-285
Soldiery shall not be quartered in houses, - 428
Searches and seizures shall not be, except, - - 429
State Constitutions, when adopted, - - 464
" legislation, its object and extent, - 573
" constitutions, how they agree, - 481
« « how they differ, - - 482
" department of, - - - 511
Secretary of Legation, - - 518
Sheriff, 575,576
State governments, operations of, - - 569
« « legislative functions of, - 573
" " judiciary of, - - 574
" " executive of, - - 570
Subsistence Department, - - 531
State governments, - 463
Slaves, .... 228,229,402
South Carolina ratified Constitution, - 463
States, manner received, - - 464
" original, which, ... 465
« purchased, which, - - 465
" annexed, which, ... 465
" Constitutions, when former, - 468,471
" new, how admitted, - - 470
" modes of admitting, - 472
State Governments, in what concerned, - 486
Suffrage, right of, 487
State statutes, construction of, - - 584
T
Tax on exportation, 236
Territory, power to acquire, * - 226
Titles of nobility not grantable, - 239, 240, 271
Tonnage duties, ... - 278
Topographical bureau, - - - 531
Treason, - 392,393,395
Tennessee received, - - - 463
2
nv INDEX.
Texas annexed,
- 463
Treasury, Department of,
529
u Secretary of,
- 529
" 1st Comptroller of.
529
« 2d " -
- 529
" 1st Auditor of. - -
529
" 2d "
- 529
« 3d « -
529
« 4th « . - .
- 529
" 5th u
529
" Treasurer of the United States,
- 529
" Register of the Treasury, "
529
" Solicitor of, "
- 529
Trial by jury, - - 385-
-392, 396. 397
Theory of the United States government,
- '488
U
United States Bank,
214-221,276
V
Virginia, recommendation of a convention,
13
Vacancies in representation,
48, 49
Vice President,
- 62-64
Veto, ....
105-109
Vermont received, -
463
Virginia received,
463
W
Washington, letter of, to the states,
11,12
War, Department of,
530
War-office, -
- 531
Wisconsin admitted,
463
Y
Yeas and nays,
- 87.88
INTRODUCTION
POLITICAL DEFINITIONS.
f 1. Sovereignty, — is the highest power.1
Thus, for a state, or nation, to be sovereign, it must
govern itself, without any dependence upon another power.3
It must have no superiors.* But when a community,
city, or state makes part of another community or state,
and is represented with foreign powers by that com-
munity or state of which it is a part, then it is not
sovereign.*
2. Government, — is the whole body of constituted
authority.5 Thus, from the very origin of society, one
portion of the people have exercised authority over the
rest. The authority thus exercised is called the gov-
eminent, and it derives its just powers from the consent
of the governed.8
3. Law, — is a rule of action.7 In this general sense,
it signifies the rules of all action, and constitutes alike
the rules . by which the heavenly bodies move, nations
are governed, and the plants grow. Law, in a political
sense, however, signifies a rule of human action. In a
particular state, « it is a rule prescribed by the supreme
1 Johnson.
* Vattel's Laws of Nations, p. 16; Martin's Laws of Nations, p. 23.
8 Rutherforth's Institutes, p. 282. * Martin, p. 25. 6 Crabbe.
* Declaration of Independence.
' 1 Blacks. Commentaries, p. 38; — Johnson.
19
1(5 INTRODUCTION.
power in the state, commanding what is right, and for-
bidding what is wrong."
4. Constitution, — is the constituted form of govern-
ment.1 It is the fundamental law; the regulation which
determines the manner in which the authority vested in
government is to be executed.2 It is delineated by the
hand of the people.3
5. A Despotism, — is that form of government4 "in
which a single individual, without any law, governs
according to his own will and caprice." An example of
this kind of government may be found in Turkey, where
the sultan exercises all the powers of^overeignty, with
respect to the general administration of public affairs,
but, even there, he is limited by certain customs and
rules, as it respects private justice.
6. A Monarchy, — is that form of government in
which a single individual governs, but according to
established laws.5 The governments of Austria, Prussia,
France, and England are examples of this form of
government. The limitations placed upon the monarch
are, however, very different in degree: thus, the power
of the Prussian monarch is very great, while that of the
king of England is so small as scarcely to be felt.
The latter acts through his ministers, who are held
responsible to the representatives of the people, and can
maintain their power only so long as they can satisfy
public opinion.
7. A Republic, — is that form of government in
which the whole people, or only a part of the people, hold
sovereign power.6 The people of Athens were formerly
an example of the first kind of republic, and governed
themselves by primary assemblies of the people, a mode
which could only be adopted where the people were
chiefly citizens, and inhabitants of one capital city. In
I Crabbe, Johnson. * Vattel, p. 26, 27.
* Supreme Court ; 2 Dallas, p. 304. * Montesquieu, book 2d, chap. I.
* Montesquieu, Spirit of Laws, book 2d, chap. I. 6 Idem.
INTRODUCTION. 17
modern times the United States are an example of the
same kind of republic, with this difference, that the peo-
ple do not govern themselves by their assemblies, but
by delegates, or through the principle of representation.
An example of the second kind of republics may be
found in Venice, Genoa, and the Dutch States,1 in ill of
which a part of the people, either absolutely or limited-
ly, exercised the authority. The difference between
these kinds of republics will be understood from the
following definitions.
8- A Democracy, — is when the sovereign power is
in the hands of the whole people.12 The term Democracy
is derived directly from the Greek word Demos, signi-
fying the people.
9. An Aristocracy, — is when the sovereign power
is in the hands only of a part of the people.3 This word
is likewise of Greek derivation. It is compounded of the
adjective Aristos, signifying best or wisest, and Kratos,
signifying power or strength; the whole word signifies
that form of government in which a few of the wisest
and best govern.4 Both Democracies and Aristocracies
are Republics.*
10- A Party, — is any number of persons confeder-
ated, by a similarity of objects and opinions in oppo-
sition to others.6 An illustration of this may be found
anywhere. In England, the whigs and tories are two
great parties, which have long divided the nation. In
France, during the revolution, the jacobins and royalists
were violently opposed. On the continent of Europe
generally, there are the parties of the liberals and
absolutists. In the United States, the federal and
democratic parties divided the country till the termina-
tion of the last war.
i Martin, p. 39. 2 Spirit of Laws, book 2d, chap. II. 3 fcfeoi-
4 This was the original meaning ; but, like other terms, it is confounded
m the using. Aristocracies are seldom either the best or the wisest.
6 Both Athens and Genoa were republics — the first a democracy and
the second an aristocracy. 6 Locke.
|8 INTRODUCTION.
11. A Faction, — is any number of persons, whether
majority or minority, confederated by some common
motive, in opposition to the rights of other persons, or to
the interests of community.1 The difference between
party and faction then is, that the former is a difference
of principle, and is founded on a general or public object,
the latter may have any motive, however personal or
selfish, and be directed towards any end, however little
connected with the public welfare. Thus, two divisions
of the people differing as to how the government shall
be administered, are parties; but a section whose object
is to keep one portion of the people from the enjoyment
of power, or to aggrandize an individual, or to divide
among themselves all the offices of state, is a faction.
12. Legislature, — is the law-making power.2 Thus,
m a Republic, it is that branch of the government in which
the people have vested the power to make laws.
13. Congress, — is a meeting for the settlement of na-
tional affairs, whether relating to one or more nations.3
In the United States, the national legislature is called the
Congress; in Europe, a conference of different powers
Dy their ministers, is called a Congress; as the meeting
of ambassadors at Laybach was called the Congress of
Laybach.
14. Legislative, — that which relates to law-making.4
15- Executive, — that which relates to the execution
of the laws.5 Thus, the chief officer of the government,
whether he be called King, President, or Governor, is
denominated the Executive, — for on him, in most cases,
the constitution devolves the duty of executing the laws.
16. Judicial,6 — that which relates to the administra-
tion of justice. Thus, judicial duties are those which
devolve upon the judges, who have to decide upon what
is law, and to adjudicate between private rights.
17. Statute Law, — is the express written will of
1 Federalist. 2 Johnson. 3 Idem. 4 Idem.
6 Idem. * Idem.
INTRODUCTION. 19
the Legislature, rendered authentic by prescribed forms.1
Thus, the statutes of Ohio are the laws enacted by the
Legislature of Ohio. It follows, from this definition in
connexion with those of Constitution and Legislature,
that statutes can be binding only when, \st, they are
executed according to the prescribed forms; and 'idly,
when they are consistent with the constitution; for, the
constitution being the fundamental law, created by the
people themselves, all other laws are inferior to it.
1 8. Common Law, — is that body of principles, usages,
and rules of action which do not rest for their authority
upon the positive will of the legislature.2 In other
words, it consists of those customs and rules to which
time and usage have given the sanction of law. Of
such, it is plain, must be the great body of the laws of every
people; for the rules of business and the usages of society
are so variable and complicated, as to be incapable of
fceing made permanently the subject of statute law. The
will of the legislature being, however, under the limita-
tion of the constitution, that of the people, statute law is
superior in force to common law ; and wherever they are
inconsistent with each other, the latter is abrogated by
the former.3
19. A Corporation, — is defined to be a body politic,
having a common seal.4 — It is an artificial, or political
person, maintaining a perpetual succession,* by means of
several individuals, united in one body through a com-
mon seal. They have a legal immortality, except so far
as they are limited by the law of their creation. . These
were originally created for purposes of charity, trade,
and education ; but are now used for all purposes in which
it is wished to transmit a common property. Thus, all
banks, turnpike companies, colleges, and chartered so-
cieties are examples of corporations.
l Kent's Coram. 1 vol. p. 319. * Idem. 1 vol. 439.
* Black. Comm. 1 vol. p. 89. * Johnson.
6 Black. Comm. 1 vol. p. 467.
20 INTRODUCTION.
20. Charter, — is the act creating the corporation,
or separate government, or the privileges bestowed upon
a community, or a society of individuals.1 It is derived
from the Latin term charta, signifying a writing.2
21. A Court, — is denned to be a place wherein
justice is judicially administered.3 In our country, and
in the New-England States especially, Court has some-
times had another signification, that of the legislative
body; thus, the General Court of Massachusetts is the
legislature. The former is, however, the correct mean
ing.
22. Municipal, — relating to a corporation. Munici-
pal laws are civil or internal, in opposition to national or
external laws.4 Thus, laws relative to the descent of
property are municipal laws; but laws relative to war,
the army, and navy, are external and national.
23. Jurisdiction, — is extent of legal power.5 Thus,
a court has jurisdiction over certain things, as all sums
over a certain amount, when its legal authority extends
over them. A government has jurisdiction over a cer-
tain territory, when its power extends over it.
24. Impeachment, — is a public accusation, by a body
authorized to make it.6 Such were the charges pre-
ferred by the British House of Commons against Warren
Hastings, Governor-general of India; and in this country
by the House of Representatives, against Samuel Chase,
one of the judges of the Supreme Court.
25. Verdict, — is the true saying of a jury.7 It is
the answer which &jury make to the court and parties,
when the plaintiff and defendant have left the cause to
their decision.
26. Judgment, — is the sentence of the law pro-
nounced by the Court.8
27- Crime, — a crime, or misdemeanor, is an act
i Black. Comm. 1 vol. 109. 2 Sullivan Polit. Class-Book, 49.
3 Black. Comm. 3 vol. p. 23. * Story's Comm. 159. 6 Johnson
« J ohnson ; Crabbe. 7 3 Black. Comm. 377. 8 3 Black. Comm. 395
INTRODUCTION. 2 1
committed, or omitted, in violation of the public laws,
either forbidding, or commanding it.1 A crime is a vio-
lation of the duty to society, in its aggregate capacity;
while a private wrong, is a violation of the duty due to
an individual. Crime is a civil, or legal term, signifying,
not a moral wrong, but a legal wrong. Thus, a man
may have committed a great moral wrong, without being
a criminal; and so, he may be a criminal, without being
a moral offender, — in the legal sense, falsehood on the
one hand, and killing game at certain seasons on the
other.
28. Treason. — Treason is denned by the United States
Constitution to be, — levying war against them, or, in ad-
hering to their enemies,- — giving them aid and comfort.2
The government of the United States is believed to be
the only one which defines precisely , the crime of treason;
and, without that definition, the president Montesquieu
said, liberty could not exist.
29. Felony, — is denned to be any species of crime,
which occasions a forfeiture of lands and goods.* Fe-
lony, in common speech, however, signifies a capital
offence. It may legally include others.
30. Reprieve. — A reprieve is the withdrawal of a judi-
cial sentence, for a time, so that its execution is suspended.4
31. Diplomacy, — signifies the intercourse which is
carried on between different nations by means of their
ministers, or agents.5
32. Revolution, — is -a radical change in the govern-
ment of the country. It may be made in various ways
- — by force and blood, as in France, 1792; by the expul-
sion of one family and settlement of another, as in
England, 1688, and in France, 1830; or by a separation
of one part of a country from another, as in the United
States, in 1776. Thus, also, all acts in opposition to
the laws, and which are not legitimate under the consti-
l 4 Blackst. 5. 2 Constitution United States Court, 3 Sec. 31.
a 4 Blackst. 94. < 4 Idem. 394. * Sullivan's Polit. Class-Book, 225.
22 INTRODUCTION.
tution, are revolutionary, because their tendency is the
overthrow of the laws.
33. Ex post facto. — An ex post facto law is a re-
trospective criminal law. A retrospective law is one
which acts upon things already done, and not merely
upon those which are to be done. An ex post facto lau>
makes something criminal which was not criminal when
done. Thus, if the legislature should pass an act, de-
claring that all persons who had not attended church last
year should be imprisoned, that law would be unconsti-
tutional, because ex post facto. But if the legislature
should pass an act that those who had attended militia
duty last year should be excused from paying taxes, and
those who had not should not be so excused, such a law
would be retrospective, but not ex post facto, because not
criminal. An ex post facto law makes past acts crimi-
nal, which were not so before.1
34. A Bill of Attainder, — is a special act of the
legislature, inflicting capital punishments upon persons
supposed to be guilty of high offences, such as treason
and felony, without any conviction in the ordinary course
of judicial proceedings.2 If it inflict a milder punish-
ment, it is called a bill of pains and penalties.
35. A Bill, — is a term used in legislation, and sig-
nifies the written form of a legislative act proposed to be
^ 36. Revenue, — is the money raised for the uses of
government. It may be derived from various sources t
but must be raised by the public consent, and converted
to public uses.
37. A Treaty, — is an agreement between independent
nations, and by the laws of nations, can be made only
by the sovereign power, and is binding on the whole com-
munity.3
38. Naturalization, — is the act, by which a foreigner
i Story's Comm. 212, 213. 2 idem. 211.
» 1 Blackst, 257— Puff. Laws of Nations, b. 8, ch. 9, sect. 6.
INTRODUCTION. 23
is made a citizen. The law, by which this is permitted,
is called a naturalization law; and the acts by which a
party avails himself of this law are the naturalization.
America is believed to be the only country, where a
general law is enacted for this purpose. In England, and
most other countries, it may be done, as a matter of
special favor ; but, even then, the privilege never extends
so far, as to make a foreigner eligible to the higher of-
fices of state.1
39. Bankruptcy, — is the act of becoming a bankrupt.
Bankrupt, bankruptcy, and bankrupt laws, are legal
terms, signifying a particular kind of insolvency, or failure
to pay one's debts. In common speech, one who cannot
pay his debts, is a bankrupt, — but it is not so in law.
Thus, by the law of England, a bankrupt is a trader,
who secretes himself, or does other acts tending to de-
fraud his creditors.2 In the United States, no general
bankrupt law has been made; but, were there one, a bank-
rupt would be one defined and described by that law.
* 40. Test Act, — Religious test; these are also legal
terms, and refer to certain legal acts of past times. A
Test Act is one, which requires all public officers and
persons becoming citizens, before they can enter upon
their duties, to subscribe to certain religious opinions,
and perform certain religious acts. By the Constitution
of the United States, this is expressly forbidden. But,
under all other governments, something of this kind is
required; thus, by the statutes of England, all civil and
military officers, are required to make a declaration against
transubstantiation, partake of the Sacrament of the Lord's
Supper, and obtain certificates of the same, before they
can enter upon any such office.3
41. The Ballot, — signifies the ball,* or ticket, by
» I Blackst. 374.
2 This is the definition; but the bankrupt is, now, one who honestly,
as well as fraudulently fails, and gives up his property to his creditors.—
2 Blackst. 471.
3 Idem. 58— Wat. 95, ch. 2. * Johnson.
24 INTRODUCTION.
which persons vote at an election. To ballot signifies
voting by ballot, i. e. by ball, or ticket. Formerly,
voting was altogether viva voce, that is, by the voice, —
the elector designating by name the person voted for;
now, elections are generally made by ballot. The name
of the person voted for is written on a ticket, and depo-
sited in a box.
42. Quorum, — is such a number of any body as is
necessary to do business.1 Thus, when it is said there
shall be eleven directors of any institution, and seven
shall constitute a quorum, seven is the number necessary
to do business ; and unless the contrary is expressed, a
majority of a quorum only is necessary to a decision.
Hence it often happens, that less than a majority of the
whole decide important questions.
43. Majority and Minority. — A majority is any
number greater than one half, and a minority is any num-
ber less than one half. One half, then, neither consti-
tutes a majority nor minority; and, if a public body were
so constituted, as to have an even number, with equal
division of opinion, and no chairman, there never could
be a majority, and consequently, no positive action.
This has been the case in some public bodies, and is
always attended with difficulty.
44. A Plurality, — is to have more than another
number, though not always to have a majori+y.of all the
given numbers. Thus, when there are several candi-
dates at an election, one may have a plurality, though
not a majority; for he may have more votes than any
one, though not more than all put together.
45. Indictment. — An indictment is a written accusa-
tion of one or more persons, of a crime or misdemeanor,
preferred to, and presented upon oath, by a grand jury.2
46. A Grand Jury, — is a number of men not less
than twelve, nor more than twenty-three, selected from
the people in the body of the county, to enquire into of-
t Johnson. 2 4 Black. Comm. 302.
INTRODUCTION. 25
fences against the states.1 They are instructed by the
court in the matters perlaining to their enquiries, and
then withdraw to receive indictments, which are preferred
to them, in the name of the state, but at the suit of a
private prosecutor.2 After an examination, such of the
bills as are found correct, are endorsed " A true Bill,'
— signed by the foreman; and hence becomes an official
accusation, to be rebutted only, by proof at the trial.
47« Taxes. — All contributions imposed by the govern-
ment upon individuals, for the service of the state, are
called taxes, by whatever name known.8 Thus, the tithes
imposed upon the people of England for the support of
church government is a tax : so also imposts, duties, ex-
cises, &-c, are taxes.
48. A Legal Tender, — is the tender of such an
article as the law requires to be made, in payment of a
debt. In the United States, gold and silver coin is the
legal tender; and the states are forbid making anything
else a tender; but it is not so in many countries, nor has
it always been so in this.
J 4 Blackst. 302. • 4 Blackst. 302, » 2 Story's Comm. 419.
3
26 ORIGIN OF THE
CHAPTER I
MtlGIN OF THE CONSTITUTION OF THE UNITED STATES
$ 1. The continent of North America was chiefly
settled by emigrants from Great Britain. The jurisdic-
tion over the new region, as well as the title to its lands,
was claimed by the mother country, under the color of
discovery and conquest. Hence, to acquire the right of
property, as well as to sustain themselves against oppo
Bition, the authority of Great Britain became necessary
to the early colonists. This was given in the form of
grants and charter?, to companies and large proprietors.
Such was the grant of the territory of Massachusetts to
the Plymouth Company, and of Maryland to Lord Balti-
more.1
\ 2. There were originally three different forms of
government in the colonies, viz. — The Charter, the Pro-
prietary, and Royal Governments. The Charter Govern-
ments were confined to New-England; the middle and
southern colonies were divided between the Proprietary
and Royal Governments,
\ 3. The Charter Governments were2 composed of a
Governor, Deputy-governor, and Assistants, elected by
the people ; these, with the freemen, i. e. citizens of the
colony, were to Compose the "General Courts," which
were authorized to appoint such officers, and make such
laws and ordinances for the welfare of the colony as to
them might seem meet. These first forms of govern-
ment in New-England contained the same principles
as, and were doubtless the origin of, our republican
system.
» Pitkin's Civil History, p. 31. * Idem. p. 36.
CONSTITUTION OF THE UNITED STATES. 27
5 4. The Proprietary1 governments were those of
Maryland, Pennsylvania, the Carolinas, and Jersey.
Part of these soon became royal governments. In the
proprietary governments, the power of appointing officers
and making laws rested in the proprietors, by the advice
and assent, generally, of the freemen. In some of them,
as in the Carolinas, singular irregularities were found.
In all, great confusion took place.
j 5. In the royal2 governments, which were New-
York, Virginia, Georgia, and Delaware, the Governor and
Council were appointed by the crown; and the people
elected representatives to the colonial legislature. The
Governor had a negative in both houses of the legisla-
ture ; and most of the officers were appointed by the
king.
{ 6. These different governments, operating also upon
a people of different habits and manners, as the Puritans
of New-England, the Cavaliers of Virginia, and the
Quakers of Pennsylvania, produced many diversities of
legislation and political character. Notwithstanding
these, however, the necessities of a common danger
from hostile tribes of Indians, and of a common interest
from similarity of circumstances, soon induced a union,
or confederacy of the colonies. Those of Massachusetts,
Plymouth, Connecticut, and New-Haven, as early as
1643, formed a league, offensive and defensive, which
they declared should be perpetual, and distinguished by
the name of the United Colonies of New-England. This
confederacy subsisted for forty years, under a regular
form of government, in which the principle of a dele-
gated congress was the prominent feature.
§ 7. A congress of commissioners, representing New-
Hampshire, Massachusetts, Rhode Island, Connecticut,
New-York, Pennsylvania, and Maryland, was held at
Albany, in 1754. This convention3 unanimously re-
i Pitkin's Civil History, p. 55. * Idem. p. 71.
» Kent's Comm. p. 191,192.
28 ORIGIN OF THE
solved, that a union of the colonies was absolutely ne-
cessary for their preservation. They proposed a gen-
eral plan of federal government, which, however, was
not adopted.
§ 8. In October, 1765, a congress1 of delegates from
nine states assembled at New-York, and digested a bill
of rights on the subject of taxation.
§ 9. In September, 1774, an association of twelve
states was formed, and delegates authorized to meet and
consult for the common welfare.
\ 10. In May, 1775, the first congress2 of the thir-
teen states assembled at Philadelphia ; and in July, 1776,
issued the Declaration of Independence.
$ 11. In November, 1777, Congress agreed upon the
celebrated Articles of Confederation, under which the
United States successfully terminated the Revolution.
This was the first formation of a general government of
all the states, and continued till the adoption of the Con-
stitution in 1788. This, however, had inherent defects,
which forced the states to the adoption of the present
system. During the Revolution, the pressure of an in-
stant and common danger kept the states in a close union,
and incited them to make all possible efforts in the com-
mon defence. When that was over, however, mutual
jealousies and separate interests, weakening the common
bonds, soon proved the utter insufficiency of a mere
confederacy for the purposes of national government.
Then it was that the ablest heads and the purest hearts
in the nation exercised their faculties in devising a new
and better form of government. General Washington,
in June, 1783, addressed a letter3 to the governors of
the several states, in which he says, "There are four
things which I humbly conceive are essential to the well'
being, I may even venture to say, to the existence of the
United States as an independent power. 1. An indis-
i Kent's Comm. p. 193. 2 idem. 195.
8 Marshall's Life of Washington, vol. 5, c. 1. p. 46.
CONSTITUTION OF THE UNITED STATES. 29
soluble union of the states under one federal head. 2.
A sacred regard to public justice. 3. The adoption of
a proper peace establishment. 4. The prevalence of
that pacific and friendly disposition among the people of
the United States which will induce them to forget their
local politics and prejudices."
\ 12. Under the first head he remarked thai, "It is
only in our united character that we are known as an
empire, that our independence is acknowledged, that our
power can be regarded, or our credit supported among
foreign nations. The treaties of European powers with
the United States of America will have no validity on a
dissolution of the Union. We may find by our own
unhappy experience, that there is a natural and neces-
sary progression from the extreme of anarchy to the
extreme of tyranny; and that arbitrary power is most
easily established on the ruins of liberty abused to li-
centiousness." Such were the sentiments of Washing-
ton, and such were those then of the nation.
§ 13. In January, 1786, the Legislature of Virginia
recommended a meeting of commissioners from the
several states to review the powers of government.
The delegates of five states met at Annapolis, but ad
journed, proposing a general convention at Philadephia
\ 14. In 1787, the convention of delegates from twelve
states was convened, and after much deliberation, formed
the present Constitution of the United States.
§ 15. By resolution1 of the convention, it was directed
to be carried into effect, when ratified by the conventions
of nine states chosen by "the people thereof." That
ratification, after much opposition, scrutinizing discus-
sion, and the adoption of several amendments, it finally
received, and all the states, eventually assenting to its
provisions, became members of the Union. In 1789 it
went into practical operation, and from that period to
this, more than forty years, has withstood unharmed
» Marshall's Wash. vol. 5,p. 129.
30 ORIGIN OF THE
the various violent influences of local feuds, opposing
interests, domestic insurrection, and foreign violence.
$16. We have seen that, at several different periods,
viz. 1643, 1754, 1765, 1774, 1777, and in 1787, the
territories composing what is called the United States,
formed associations for the purposes of a common go-
vernment and general welfare. Let us now examine
how these were originally constituted, and in what man-
ner modified by time and experience.
$ 17. By the articles of confederation made in 1643,
between the colonies of Massachusetts, Connecticut,
and New-Haven, it was expressly declared to be a
league, under the name of the United Colonies of New-
England. The chief points in this confederation were, —
1st. That each colony should have peculiar jurisdiction
and government within its own limits. 2d. That the
quotas of men and money were to be furnished in pro-
portion to the population, for which purpose a census
was to be taken from time to time of such as were able
to bear arms. 3d. That to manage such matters as
concerned the whole confederation, a Congress of two
commissioners from each colony should meet annually,
with power to weigh and determine all affairs of war
and peace, leagues, aids, charges, and whatever else
were proper concomitants of a confederation offensive
and defensive,- and that to determine any question,
three-fourths of these commissioners must agree, or the
matter is to be referred to the General Courts. 4th. That
these commissioners may choose a president, but that
such president has no power over the business or pro-
ceedings. 5th. That neither of the colonies should en-
gage in any war without consent of the general com-
missioners. 6th. That if any of the confederates
should break any of these articles, or otherwise injure
any of the other confederates, then such breach should
be considered and ordered by the commissioners of the
other colonies.
CONSTITUTION OF THE UNITED STATES. 3 1
§18. Now it will be observed that this confederacy-
was, by agreement, a mere league, from motives of amity,
for objects of general offence and defence. As such, it
was as good a model as any which history presents us ;
but as a government, it was utterly inefficient: its prin-
cipal defects in the last point of view were, 1 . The want
of an Executive, without which it could never act as a
whole. All the acts of the commissioners had to be en-
forced by each separate colony: they did not act upon
individuals. 2. The want of a General Judiciary, by
which offences arising between the several members,
or against the whole confederacy, might be taken cog-
nizance of. 3d. The want of any general power to
obtain credit or emit money. In short, this league did
not pretend to be a government, and was deficient in
nearly all the attributes of sovereignty.
\ 1 9. Upon the last provision, that providing a reme
dy for breaches of the league by one of the confeder-
acy, it is worthy of remark, that it never entered into
the heads of people then, that it was possible for one
party to a compact to make itself judges of its own
breaches of it: on the contrary, it was provided that
such breaches should be judged of by the other members
of the confederacy. It was reserved for a much later
period of history, and it would seem for far more inge-
nious men, to divine a mode by which a party to a con-
tract can at once make itself a judge of its own viola
tions of it, and invalidate at pleasure its provisions.
$ 20. The next plan of association was that formed
by the commissioners who met at Albany in 1754. It
was not accepted by the mother country, but may serve
to show what progress in ideas of government had then
been made by the colonists. It is remarkable that the
scheme proposed did not purport, like the other, to be a
league, or confederation, but a plan for one general gov-
ernment. Its principal provisions were, — 1. That the
general government should be administered by a presi-
32 ORIGIN OF THE
dent-general appointed by the crown, and a grand coun-
cil chosen by the representatives of the people in their
general assemblies. 2. That the council should be
chosen every three years, and shall meet once each
year. 3. That the assent of the president be necessaiy
to all acts of the council, and that it is his duty to see
them executed. 4. That the president and council
may hold treaties, make peace, and declare war with
the several Indian tribes. 5. That for these purposes
they have power to levy and collect such duties, imposts,
and taxes as to them shall seem just.
§ 21. It will be seen that this was a much nearer
approach to an organized government than the con-
federacy of 1643- It provided for a strong executive,
but was without the sanction of a general judiciary, and
made no provision for regulating the currency.
§ 22. We come now to the articles of confederation.
During the early part of the Revolution, the powers of a
general nature were executed without question or
hinderance by a 'congress of deputies from the several
states. Patriotism and a common danger absorbed all
other principles, and made ordinary ties unnecessary.
A universal opinion, however, prevailed in favor of
union, and after much deliberation, 2congress in No
vember, 1777, agreed upon the articles of confederation.
They were, after various delays, ratified by the different
states; the principal objection being in respect to the
wild lands, which were claimed by several of the states,
but which others urged should go to bear the common
burthen. In the sequel, these lands were nobly ceded
by the states who held them, to the common benefit of
the Union.
$ 23. The Articles of Confederation provided,—
1st. That the style of the Confederacy should be the
"United States of America."
2d. That each state should retain its sovereignty,
i Journal of Congress, vol. 2, p. 475. * 1 Kent's Coram. 197.
CONSTITUTION OF THE UNITED STATES. 33
independence, and such rights as were not delegated to
the general Congress.
3d. That the object of the league was the general
welfare, and the common defence against foreign ag-
gression.
4th. That the citizens of one state shall have the
privileges of citizens in another, and that full faith and
credit shall be given to the records, acts, and judicial
proceedings in another state.
5th. That for the management of the general inter-
ests, delegates shall be annually appointed to meet in
Congress, — each state having not less than two nor
more than seven; and that in determining questions in
Congress, each state shall have one vote.
6th. That no state shall, without the consent of Con-
gress, enter into any treaty or alliance with any for-
eign power or nation, or with any other state; nor lay
any imposts or duties interfering with any stipulations
contained in any treaty made by Congress; nor keep
any vessels of war or armed forces in time of peace,
except such as Congress may deem necessary; nor en-
gage in any war without the consent of Congress, un-
less the state be actually invaded, or the danger immi-
nent; nor grant letters of marque, unless such state be
infested with pirates.
• 7th. All charges for the general welfare shall be
defrayed out of a common treasury, which shall be
levied in proportion to the value of land within each
state.
8th. The "United States in Congress assembled"
ehall have the exclusive right of making peace and war;
entering into treaties and alliances; granting letters of
marque, and establishing courts and rules for the trial
of piracies and felonies, and determining questions in
relation to captures; and that the Congress have the
power to determine all questions and differences be-
tween two or more states, concerning any cause what-
34 • ORIGIN OF THE
ever: which authority shall be exercised by instituting
a court in manner and form as provided, where judg-
ment shall be final and decisive; and that they have
power to fix the standard of weights, measures, and
coin; establish Post-offices and commission Officers;
that they shall have power to appoint a committee of
the states, and such other civil officers as may be ne-
cessary to manage the general affairs of the United
States under their direction; to elect their President; to
fix the sums of money to be raised; to borrow money
and emit bills of credit; to agree on the number of for-
ces to be raised, which are to be distributed among the
states in proportion to their white inhabitants; that "the
United States" shall not exercise these powers, unless
nine states assent to the same, nor shall any question
except that of adjournment be determined unless by the
votes of a majority of the states.
9th. It is further provided, that the committee of the
states, or any nine of them, shall be authorized to exe-
cute, in the recess of Congress, such of the powers of
Congress as the United States, or any nine of them shall
think proper to vest them with.
10th. All debts contracted under the authority of
Congress shall be deemed and considered as a charge
against the United States, for which the public faith is
pledged.
11th. That every state shall abide by the determina-
tions of Congress upon the questions submitted to it,
and the union shall be perpetual.
\ 24. Such is a synopsis of the articles of confed-
eration, under which the United States terminated the
war of the Revolution, and continued till the adoption
of the Constitution. It will be remarked,
1. That the states still assume the style of a league
or confederacy, and that, 2dly, they had notwithstanding
granted away many attributes of sovereignty, even
f
CONSTITUTION OP THE UNITED STATES. 35
greater than those proposed to be vested in the Presi-
dent and Council by the plan of 1754.
$ 25. This Confederacy had many obvious and pal-
pable deficiencies, as a government, principally, how-
ever, in the mode and process of its administration.
1. There was still wanting an Executive in form,
though nearly all its powers were granted to Congress
and the "committee of the states."
2. No general Judiciary was provided; yet they had
gone so far as to provide a Marine or Admiralty Court,
and a general tribunal to settle conflicts and disputes
between the several states.
3. The great deficiency was, that the articles of con-
federation did not act upon individuals, but upon the
states; and that to raise men and money, it was neces-
sary to act through the medium of many distinct go-
vernments.
Q 26. By a comparison of the original association of
1643, the plan of 1754, and the articles of confedera-
tion, we find that the minds of the colonists had gradu-
ally tended from the notion of separate sovereignties
to that of a general and united government. Each
change, founded on experience, had given additional
strength to the confederacy. Thus the association of
1643 was a simple league, existing by means of trea-
ties, and exercised through commissioners; and though
possessing many of the attributes of sovereignty, holding
them only through an alliance. The plan of 1754,
though not adopted, was that of a general government,
and had a strong executive. The articles of confeder-
ation, though reverting back to the form of a confeder-
acy, greatly increased, in theory, the powers of govern-
ment: For example, it superadded to the powers of for-
mer Congresses, those of emitting bills of credit, estab-
lishing Marine Courts, and judging between the states.
Under this confederation, the United States, by the
peace of 1783, achieved their separate and independent
%
36 ORIGIN OF THE
existence as a nation. Yet, we have already seen, it
was found insufficient for the purposes of a stable go-
vernment, and how, in 1787, the present Constitution
was formed and adopted.
§ 27- In this chapter we have established these pro-
positions : —
1st. That the idea of a union of the colonies origin-
ated in the very earliest stage of their existence.
2d. That their idea was that of a government exer-
cised for the general welfare, and founded upon a rep-
resentation of the people.
3d. That for this purpose they from time to time^^
formed leagues and confederacies.
4th. That these associations were made closer and^
stronger, as time and experience progressed.
5th. Lastly, that they were all merged in the "more
perfect union" and general government formed by the
Convention of 1787.
CONSTITUTION OF THE UNITED STATES. 37
CHAPTER II.
CONSTITUTION OF THE UNITED STATES.
PREAMBLE.
$28. We, the Peoplfe of the United States, in order to
form a more perfect union, establish justice, ensure domes-
tic tranquillity, provide for the common defence, promote
the general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.
§ 29. In this preamble are asserted, — 1st, the power
making the Constitution, "We the People," &c; 2dly,
the object for which it was formed, the more perfect
union, general welfare, &c; 3dly, the subject of it,
the United States.
$ 30. The first position, that "We the People do or-
dain," &c, is the foundation of the most solemn inquiry
which ever agitated the American people, — whether
this phrase be a mere nullity, or whether the Constitu-
tion was indeed formed by the whole people!
$ 31. It is one of the rules1 for interpreting laws, that
they must be understood according to the context, i. e.
the whole must be taken in connexion. This passage
will, therefore, be better understood when we have re-
viewed the entire Constitution. The preamble throws
light upon the instrument, and the instrument upon the
preamble. It is sufficient to remark here, that the
terms used are in perfect accordance with the mode
by which the Constitution was ratified : this was by con-
ventions2 of the people, and not by the legislatures of
» Blackstone's Coram. 59. » 2 Pitkin's Civil Hist. p. 264.
4
38 CONSTITUTION OF
the states. On the other hand, the convention1 which
formed the Constitution was composed of delegates cho-
sen by the state Legislatures. The necessary' infer-
ence is, that the states, in their official capacity, pro-
posed the Constitution, and the people, by ratifying it,
gave it authority: it is therefore a government founded
by separate states, but receiving its sanction and validity
from the whole people.
§ 32. 2d. The objects proposed are exactly consist-
ent with this idea. A perfect union, and a government
legislating for the general welfare, are incompatible
with separate and independent sovereignties. The terms
independence and sovereignty, used in relation to mat-
ters of government and politics, must of course be un-
derstood in a political sense, and according to our defi-
nition. There "are some common acceptations of these
terms in which a much lower importance is attached to
sovereignty. Thus, a man may be perfectly sovereign
in his own house, and yet be subject to the laws of so-
ciety. An animal may be utterly independent of an-
other animal, and yet a member of, and subject to the
laws of, the animal kingdom. In this sense the states,
considered as composing a society, are sovereign and
independent in their domestic and municipal relations.
These terms, in their political sense, have a higher
meaning: as applied to nations, independence does not
admit of a close union, nor sovereignty of another go-
vernment legislating for the general welfare,
THE CONSTITUTION.
$ 33. The Constitution of the United States contains
seven articles, — to which were added several miscella-
neous amendments.
Article 1st. Relates to the Legislative Power.
Article 2d. To the Executive Power.
Article 3d. To the Judicial Power.
» Pitkin's Civil Hist. p. 219.
THE UNITED STATES. 39
Article 4th. To the validity of Public Acts and Re-
cords,— the rights of Citizenship, — the admission of
new States, — and the forms of State Governments.
Article 5th. Relates to the mode of amending the
Constitution.
Article 6th. To the national faith and the binding
force of the Constitution.
Article 7th. To the mode of its ratification.
$ 34. That we may have an accurate view of the
Constitution, not merely^ as it is written, but as it has
been construed, and acted upon by the various depart-
ments of the government, we shall take these Articles
up by sections, and consider them in connexion with
judicial and other decisions upon them.
ARTICLE I.
5 35. Section 1st. All legislative powers herein
granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of
Representatives.
] 36. Whenever power is vested in a representative
body, it is usually divided between a body of direct rep-
resentatives and one more remote and differently con-
stituted. Thus, in Great Britain, the legislative power
is vested in the Commons and the House of Peers; so
also in France, the House of Deputies and the Peers;
so also the legislative power of the several states is
similarly vested in two houses. The provision is a
wise one, in rendering measures less precipitate, and in
removing one portion of the Legislature from the im-
mediate action of popular passion, while it retains it
within the ultimate influence of the people.
$ 37. Section 2d. First clause. The House of Rep-
resentatives shall be composed of members chosen every
second year by the people of the several states; and the
electors in each state shaU have the qualifications requisite
40 CONSTITUTION OF
for electors of the most numerous branch of the state
Legislature.
§ 38. About the frequency of elections there has been
much dispute. In England, the period for which a re-
presentative is chosen is seven years ; in some of the
states it is two, and in some only six months. In the
Constitution it is fixed at two years, as being a period
sufficiently long to give the people some time for reflec-
tion, and yet sufficiently short to secure the responsibility
of the representative.
As the electors of the different state Legislatures varied
materially, it was thought proper that the representatives
from each state should be chosen by the people, in the
manner they had appointed for the choice of their own
legislature.
§ 39. 2d clause. No person shall be a representative
who shall not have attained to the age of twenty-five years,
and been seven years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that state
in which he shall be chosen.
§ 40. The propriety of requiring a seven years' citizen-
ship cannot be doubted; aliens cannot be regarded as a
part of the nation ; and length of time, as well as natu-
ralization is required, to make them acquainted with the
interests of the country.
§ 41. A representative must be an inhabitant of the
state from which he is chosen. In respect to this provi-
sion, a question has arisen, whether a man residing at the
seat of government in his official capacity ceases to be a
legal inhabitant of the state of which he was a citizen?
It was decided in the case of Mr. John Bailey,1 a repre-
sentative from Norfolk district, Massachusetts, who had
for several years been a clerk in the department of State,
that an official residence in the District of Columbia did
take away his qualifications as a citizen of tho
state whence he came. This decision will probably be
reversed. l See Journals of Congress.
THE UNITED STATES. 41
Mr.Bailey, however, returned to Massachusetts, and
within five months was re-elected and admitted to his
seat. The point is, therefore, undecided.
§42. 3d clause. Representatives and direct taxes
shall be apportioned among the several states which may
be included within this Union, according to their respective
numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service
for a term of years, and excluding Indians not taxed,
three-ffths of all other persons. The actual enumeration
shall be made within three years after the first meeting
of the Congress of the United States, and within every
subsequent term of ten years, in such a manner as they
shall by law direct. The number of representatives shall
not exceed one for every thirty thousand, but each state
shall have at least one representative; and until such
enumeration shall be made, the state of New-Hampshire
shall be entitled to choose three; Massachusetts, t eight,
Rhode Island and Providence Plantations, one; Con-
necticut, five ; New-York, six; New-Jersey, four ; Pennsyl-
vania,eight; Delaware, one; Maryland, six; Virginia, ten,
North Carolina, five; South Carolina, Jive; and Georgia,
three.
§43. It is to be observed, that the representative po-
pulation is not the whole population of the United States;
after including "all free persons," "excluding Indians
not taxed," it includes "three-fifths of all other persons."
The other persons here mentioned are slaves, and conse-
quently the states holding slaves have a representation
for three-fifths of the whole number : thus, in some of the
states, the slaves exceed the whites in number, and as.
these slaves exercise no political privileges themselves,
it follows that their- masters hold double the political
power held by the citizens of the non-slave-holding states.
Of this, however, they do not, and ought not to complain,
as it was the necessary result of the compromise, without
42 CONSTITUTION OF
which it is probable the Union could never have been
formed.
5 44. It is said that the electors must be the same as
those for " the most numerous branch of the state Legis
lature." Some of these electors, as in New-Jersey,
North and South Carolinas, must have a, property quali-
fication, and others again come in under universal suf-
frage; hence the qualifications for electors are not
uniform.
§ 45. The mode of electing representatives to Con-
gress is not the same in the several states. Thus, in
some, it is by general ticket, as in Connecticut1 and
New-Jersey: in others, by the district system, as in New-
York and Pennsylvania.
§ 46. Under this section has arisen a question in respect
to the mode of apportioning representatives. Congress
passed a law,2 giving a number of representatives equal
to the whole population of the United States, divided by
30,000. This gave a larger number than would arise
by dividing the population of the respective states by
the same number, and adding together the quotients.
The additional members were given to the states having
the largest fractions. This principle was objected toby
General Washington, who was then President, and the
bill returned with his reasons. The objection was, that
the Constitution required that the representation should
be apportioned among \\\q several states, and not accord-
ing to the whole population of the Union. The bill was
returned to Congress, the matter again discussed, and
the objectionable feature struck out. The same prin-
ciple came up under the census of 1830.3 The House
of Representatives passed the apportionment bill in the
usual form, and the Senate inserted a provision, making
the number for a single representative a divisor of the
whole representative population of the United States,
1 Connecticut is now Districted. 2 Pitkin's Civil Hist. 351.
3 Journals of Congress, 1832
THE UNITED STATES. 43
and giving a representative to the largest fraction. The
House would not agree to the principle, and the Senate
finally receded from their ground. It may therefore be
now considered as a settled construction of the Consti-
tution, that the ratio of representation must be a common
divisor of the numbers in the several states, and not in
the whole Union.
§ 47. This section likewise requires, that an enume-
ration should be taken every ten years of the inhabitants
of the United States. This commenced in 1790, by Act
of Congress, and has been continued ever since. The
ratio of representation has been altered at each census.
The ratio, that is, the common divisor, or number which
is entitled to a representative, has been constantly in-
creasing, but the increase being in a less proportion than
that of the population, the number of representatives has
likewise increased.1
§ 48. Clause 4th. When vacancies happen in the
representation from any state, the executive authority
thereof shall issue writs of election to fill up such vacan-
cies.
\ 49. The necessity for this clause frequently arises,
by virtue of the death or resignation of members of
Congress. In some states, as in Massachusetts and
Vermont, repeated elections have to be held before a
choice can be made, in consequence of a majority of the
votes being required to elect.
§50. 5th clause. The House of Representatives shall
choose their Speaker, and other officers, and shall have
the sole power of impeachment.
5 51. The power of impeachment is one of the most
important under the Constitution. It is the only mode in
which the Judiciary is made responsible, and it is a
1 In 1790, the ratio was 33,000, and the number of Representatives
106. In 1800, the same ratio, but 140 members. In 1810, ratio 35,000,
members 181. In 1820, ratio 40,000, members 210. In 1830, ratio
47,700, members 240.
44 CONSTITUTION OF
salutary and necessary check upon the President and
his officers.
§ 52. The most prominent examples of impeachment
under the Constitution are those of Judges Chase and
Peck.1 In March, 1804, the House of Representatives,
by resolution, impeached Samuel Chase, — one of the
Judges of the Supreme Court, — of malversation, im-
proper and arbitrary conduct in office. In 1830, they
did the same in relation to James H. Peck, District
Judge for the state of Missouri. They were both ac-
quitted.
§ 53- The mode of impeachment is this: the House
pass a resolution to impeach, and then appoint a committee
to manage the impeachment, and prepare the articles;
articles making a plain statement of the case, in the
manner, but with less formality than an indictment, are
then adopted by the House. The Senate are then
officially informed that such charges are preferred by
the House, and resolve, that on a given day the Senate
will sit as a Court of Impeachment. In the meantime,
a summons to appear and answer is served upon the
party, and as many subpoenas for witnesses are issued
as the managers or the party accused may direct. On
the day appointed for trial, the appearance or non-
appearance of the party is recorded, and at twelve
o'clock, the Secretary of the Senate administers an oath
to the President of the Senate, that "he will do impartial
justice, according to the Constitution and laws of the
United States.'" The same oath is then administered
by the President to each senator present. 2Counsel are
then heard for the respective parties; all motions are
addressed to the President, and decisions are made by
ayes and nays without debate. Witnesses are examined
and cross-examined, in the usual manner. Questions*
put by senators are reduced to writing, and put by the
* See Journal of the 8th Congress.
8 Rules adopted by the Senate on the trial of S. Chase.
THE UNITED STATES. 45
President. It requires two-thirds to make a convic-
tion.
5 54. Section 3d. 1st clause. The Senate of the
United States shall be composed of two senators from each
state, chosen by the Legislature thereof, for six years,
and each senator shall have one vote.
§ 55. In the Senate each state is equally represented.
It has been said by an eminent jurist,1 that this feature
of the Senate, and the mode of its election by the Legis-
latures, are evidences of the separate and independent
existence of the states. If, by separate and independent
be meant any thing more than local and municipal inde-
pendence, the truth of the proposition is not readily
seen. The-counties of Great Britain were till recently
equally represented in the House of Commons,- so also
are the counties of the state of Maryland in the state
Legislature; yet, who would attribute a separate exist'
ence, or independent power, to these counties, beyond
mere local county purposes? The very contrary of this
position, as it respects the United States, is shown from
the fact, that the Senate votes, not by states, but by
persons: henco, the members from a given state may, and
often do, vote on opposite sides cf a question. Here the
representation of the state is neither separate nor inde-
pendent, but mixed up with the whole mass. It is no
doubt true, that this provision was intended to secure to
the people of each state an equality of political power
in the Senate; but it no more proves the separate exist-
ence, independence, or sovereignty of the states, than the
government of Maryland acknowledges the separation
and independence of its counties. As to the election of
the senators by the state Legislatures, it is only the mode .
by which the people of the state exercise their power.
In the same manner, the counties in Maryland send an
equal number of delegates to a convention, which con-
vention choose the state Senate; now the convention is
» 1 Kent's Coram. 211.
46 CONSTITUTION OF
the mere form through which the people express their
will; — it is no acknowledgment of any separate authority
in those counties.
§ 56. As it is provided, that the senators shall be
chosen by the Legislatures, it is settled by the practice
of most of the states, that they may be chosen by joint
ballot of both houses, voting by individuals, and not ne-
cessarily by the Legislature in its official capacity, each
house having a negative on the other.
§ 57. 2d clause. Immediately after they shall be
assembled, in consequence of the first election, they shall
be divided, as equally as may be, into three classes. The
seats of the senators of the first class shall be vacated at
the expiration of the second year, of the second class at
the expiration of the fourth year, and of the third class
at the expiration of the sixth year, so that one-third may
be chosen every second year; and if vacancies happen
by resignation or otherwise, during the recess of the
Legislature of any state, the executive thereof may make
temporary appointments, until the next meeting of the
Legislature, which shall then fill such vacancies.
§ 58. The members of the first Senate were, in con-
formity to the Constitution, divided by lot into three
classes, the terms of service of which expired in two,
four, and six years, and ever since one-third has been
removed every second year. In drawing the lots, care
was taken that but one vacancy should occur at the same
time in the representation of any one state.
§ 59. It has been decided1 under this clause, that the
Governor cannot make an appointment during the recess
of the Legislature, in anticipation of a vacancy. Thus,
the term of James Lanman, senator from Connecticut,
expired on the 3d of March, 1825. The President had
convoked the Senate to meet on the 4th of March.
The Legislature of Connecticut did not meet till May.
1 Gordon's Digest of the Laws of the United States, 1827 ; Appendix,
note 1. /
1
THE UNITED STATES. 47
The Governor, in February, appointed Mr. Lanman to
sit after the 3d of March. The Senate decided that such
an appointment cannot be constitutionally made; the
vacancy must first occur.
§ 60. 3d clause. No person shall be a senator wlio
shall not have attained to the age of thirty years, and been
nine years a citizen of the United States, and who shall
not, when elected, be an inhabitant of that state for which
he shall be chosen.
§61. All these limitations are manifestly founded
upon propriety. It is probable they might have been
made still stronger without injury to the public in-
terests.
§ 62. 4th clause. The Vice President of the United
States shall be President of the Senate, but shall have no
vote unless they be equally divided.
§ 63. Legislative bodies have generally the power
of choosing their own presiding officer; in this instance,
however, the Constitution conferred the office of presiding
over the Senate to the Vice President ; one reason may
have been that he has no other duties to perform, and
the chair of the Senate conferred dignity upon him. The
casting vote of the Vice President has been frequently
given, and in some very important cases.
§ 64. In 1826,1 a question arose whether the Vice
resident had the power of preserving order independent
f the rules of the Senate? The then Vice President,
Ir. Calhoun, decided that he had not. In 1828, how-
ever, the Senate made a rule, that " every question of
order shall be decided by the President without debate,
subject to appeal to the Senate."
§65. 5th clause. The Senate shall choose their other
officers, and also a President pro tempore, in the absence
of the Vice President, or when he shall exercise the office
of President of the United States.
§ 66. The power of choosing a President pro tempore,
J 1 American Annual Register, SG, 87; 3. Idem. 99.
48 CONSTITUTION OF
is constantly exercised, the Vice President being fre-
quently absent.
§ 67- 6th clause. The Senate shall have the sole
'power to try all impeachments. When sitting for that
purpose, they shall be on oath or affirmation. When the
President of the United States is tried, the Chief Justice
shall preside; and no person shall be convicted without the
concurrence of two-thirds of the members present.
§ 63. The impeaching power, and some of the rules
of conducting an impeachment, have been heretofore
noticed.1 This mode of impeachment and trial under
the Constitution is derived from the British Parliament,
where the Commons have the sole power of impeach-
ment, and the House of Lords the power of trial. It
seems, however, to have been introduced into the Com-
mon Law from the customs of the Germans; among
them, however, the people were both accusers and
judges.
§ 69. In the trial of the President, the Chief Justice
presides, in order to preclude the Vice President, who,
in case of a vacancy, succeeds to the Presidency, from
having any part in the creation of that vacancy
§ 70. 7th clause. Judgment in case of impeachment
shall not extend farther than to a removal from office, and
disqualification to hold and enjoy any office of honor,
trust, or proft, under the United States; but the. parti
convicted shall, nevertheless, be liable, and subject t
indictment, trial, judgment, and punishment according t
law.
In England, the judgment upon impeachments extends,
not only to removal from office, but to the whole penalty
attached by law to the offence. The House of Lords
may, therefore, inflict capital punishment, banishment,
or forfeiture of goods, according to its discretion.2
§ 71. In another place3 we have stated the mode of
» Sections 51, 52, 53. * Com. Digest. Parliament, L. 44.
3 Section 53.
1
THE UNITED STATES. 49
procedure in the Senate upon the trial of impeachments.
When the evidence is gone through, and the parties have
been heard, the Senate proceed to consider the case,
[f debates arise, they are in secret; a day is then as-
signed for a public decision by yeas and nays. When
the court has met, the question is propounded by the
President of the Senate to each individual member by
name : whereupon the member rises and answers, guilty,
or not guilty, as his opinion is. If upon no one article the
party is found guilty by two-thirds of the Senate, he is de-
clared acquitted by the President of the Senate. If guilty,
the Senate proceed to fix and declare the punishment.
§ 72. Section 4th. 1st clause. The times, places,
and manner of holding elections for senators and repre-
sentatives shall be prescribed in each state by the Legis-
lature thereof; but the Congress may, at any time, by law,
make or alter such regulations, except as to the places of
choosing senators.
\ 73. Under this section Congress has the power to
appoint the times and modes of choosing representatives
and senators. This power they have never exercised,
and the time and mode of choosing them is consequently
very various. In some states, as New- York and Ohio,
members of the House of Representatives are chosen
in the year previous to the dissolution of Congress; in
others, as New-Hampshire and Virginia, in the spring
following; and in others again, as in Indiana, in the
following summer. Congress has, except on two occa-
sions, met on or about the first Monday in December;
but suppose, that from the emergency of the case, they
should appoint a day early in the spring; in what man-
ner would those states now electing representatives in
the summer, be represented? The power of regulating
the times and places of electing representatives, was thus
given to Congress, in order that it might have the means
of its own preservation; otherwise, the states might
prevent an election.
50 CONSTITUTION OF
$ 74. 2d clause. The Congress shall assemble at
least once in every year; and such meeting shall be on
the first Monday in December, unless they shall by law
appoint a different day.
$ 75. This provision was inserted in order to estab-
lish, beyond the possibility of prevention, the annual
sessions of Congress; the time of meeting within the
year has been fixed, but Congress may change it, and
on two or three occasions they have held extra sessions.
§ 76. Section 5th. 1st clause. Each House shallbe
the judge of the elections, returns, and qualifications of
its own members; and a majority of each shall constitute
a quorum to do business; but a smaller number may ad-
journ from day to day, and may be authorized to compel
the attendance of absent members, in such a manner and
under such penalties as each House may provide.
§ 77. Some number must be fixed to constitute a
quorum; it is here fixed at a majority, upon the general
principle recognised in all the institutions of the Uni-
ted States, that the majority must govern. If any less
number were required to make a quorum, the minority,
by acting in the absence of the majority, might govern;
and if a larger number were required, the minority
might prevent legislation by absenting themselves.
§ 78. The House and Senate regularly appoint com-
mittees on elections, which investigate all contested
claims to seats, and all doubtful returns, qualifications,
&c. The committees report to the House, which makes
the ultimate decision. From this decision there is no
appeal, and it is obvious there ought not to be, for the
power could be no where else lodged so safely.
\ 79. 2d clause. Each House shall determine the
rules of its proceedings, punish its members for disorder*
ly behavior, and with the concurrence of two-thirds, ex-
pel a member.
\ 80- The rules of proceedings enacted are numerous,
and will be considered in another place.
THE UNITED STATES. 51
§ 81. The power to "punish its members for elisor
derly behavior" has been frequently exercised. Thus,
in 1797, William Blount, a senator from Tennessee,
was expelled for "a high misdemeanor, entirely incon-
sistent with his public trust and duty as a senator.'"
His offence was an attempt to seduce an Indian agent
from his duty, and alienate the affections of the Indians
from the authorities of the United States. The offence
was not statutable, nor committed in his official charac-
ter, nor committed during the session of Congress, nor
at the seat of government. Yet he was expelled from
the Senate, and afterward impeached.1
5 82- It is, therefore, settled by the Senate, that ex-
pulsion may be for any misdemeanor, though not pun-
ishable by any statute, which is inconsistent with the
trust and duty of a senator.
§ 83. Although there is a power enumerated given to
Congress to punish disorderly behavior, yet there is
none expressly given to punish contempts. Yet this
power, being absolutely necessary to the order and
security of the House, has been adjudged, both by Con-
gress and the Supreme Court, to be a necessary inci-
dent to the powers of Congress.
\ 84. This power was exercised by the House of
Representatives in the case of Robert Randall, in 1795,
for an attempt to corrupt a member.
\ 85. The same point was solemnly decided by the
Supreme Court in the case of Anderson vs. Dunn.2
One Anderson was committed for a contempt of the
House, and placed in the custody of the sergeant-at-
arms. An action of trespass was brought against the
officer, and the case carried to the Supreme Court.
That tribunal decided that the House had the power, and
that it extended n<> farther than imprisonment, and con-
tinued no longer than the duration of the power that
» 2 Story's Comm. 299. * 6 Wheaton, 204.
52 CONSTITUTION OP
imprisoned, and consequently terminated with the dis-
solution of Congress.
§ 86. The same power was exercised in 1800 by the
Senate in the case of William Duane, who was found
guilty of a printed libel on the Senate, and punished
with imprisonment.1 So also by the House of Repre-
sentatives, in the case of Samuel Houston, who assault-
ed a member for words spoken in debate, and was found
guilty of a contempt, and reprimanded.2
§ 87- 3d clause. Each House shall keep a journal of
its proceedings, and from time to time publish the same,
excepting such parts as may in their judgment require
secrecy; and the yeas and nays of the members of either
House, on any question, shall, at the desire of one-fifth of
those present, be entered on the journal.
§ 88. The yeas and nays, being the means by which
the constituents discover the conduct of their represen-
tatives, are often called for and generally granted. No
important question is agitated upon which the yeas and
nays are not recorded. This provision is very impor-
tant; for, as the periods of elections are short, the rep-
resentative is constantly held responsible to the people,
and there is no scrutiny which he dreads more than that
into his recorded votes.
§ 89. 4th clause. Neither House, during the session
of Congress, shall, without the consent of the other, ad-
journ for more than three days, nor to any other place
than that in which the two Houses shall be sitting.
§ 90. By this provision, it is impossible that either
House should prevent the progress of business, and each
has a complete negative on the other.
$ 91. Section 6th. 1st clause. The Senators and
Representatives shall receive a compensation for their
services, to be ascertained by law, and paid out of the
Treasury of the United States. They shall in all cases,
' Journal of the Senate, March 1800.
* Other authorities— 1 Dall. Rep. 296. 4 Johns. Rep. 417.
THE UNITED STATES. 53
except treason, felony, and breach of the peace, be
privileged from arrest during their attendance at the
session of their respective Houses, and in going to or
returning from the same; and for any speech or debate in
either House, they shallnot be questioned in any other place.
§92. The compensation allowed by Congress for
their own service was, and is now, a per diem allowance,
with mileage for the distance traveled, going and return-
ing. Congress, several years since, enacted that each
member should receive a fixed compensation; thus, in
fact, making themselves salary officers. This was re-
ceived by the people with so much censure and condem-
nation, that the next Congress was obliged to repeal the
law.
§93. The privilege from arrest during attendance
upon legislative business, is derived from the Saxon in-
stitutions. It was the privilege of the members of the
Saxon Wittenagemot,1 or assembly of wise men, and
thence has descended through all the systems of Eng-
lish and American Law.
§ 94. The effect of this privilege is, that the arrest of
a member is unlawful, and a trespass for which he may
maintain his action. He may also be discharged upon
a writ of Habeas Corpus,2 and the arrest may be punish-
ed as a contempt of the House.
§ 95. In going to and returning from Congress, ample
time is allowed, and a little deviation does not take away
the privilege.
§ 96. The privilege from arrest takes place by force
of the election, and before the member has taken his
seat, or is sworn.
§ 97- This privilege does not extend to felony, trea-
son, or breach of the peace; and the terms breach of the
peace being general, have been decided to extend to all
indictable offences, as well as those which are only con-
structive breaches of the peace.3
> 1 Hume, 155. * 2 Wilson's Rep. 151. 3 Blackst. Coram. 166.
5*
54 CONSTITUTION OF
§ 98. The privilege of speech and debate does not
extend beyond the limits of legislative or parliamentary
duty. Thus, for a speech merely delivered in the
House, a member cannot be questioned; yet, if he pub-
lish the speech, and it contain a libel, he is liable to an
action for it, as in any other case.1
§ 99. 2d clause. No Senator or Representative shall,
during the time for which he was elected, be appointed
to any civil office under the authority of the United
States which shall have been created, or the emoluments
whereof shall have been increased, during such time,
and no person holding any office under the United
States shall be a member of either House during his con-
tinuance in office.
§ 100. The first part of this clause was inserted as
a safeguard against venality; yet were there really
any danger from such a source of corruption, it would
not seem to be prevented by this provision, for it extends
only "during such time," — the time for which he was
elected, which is so short as to leave the full force of
promised reward beyond it.
§ 101. The second provision, which prevents office-
holders from holding a seat in Congress, is very unlike
the Constitution of the British Parliament, by which any
member of the ministry may hold a seat in the House of
Commons. By this means there is certainly a degree
of responsibility on the part of the ministry, which is un-
felt by the executive officers of our government, who com-
municate with congress only through the details of a
report, or the columns of a newspaper. The provision
was inserted, however, for the purpose of preventing
an undue influence of the government upon the action
of Congress.
§ 102. Section 7th. Clause 1st. All bills for rais-
ing revenue shall originate in the House of Representa
» 1 Maule and Selwyn's Rep. 273.
THE UNITED STATES. 55
ilvcs, but the Senate may propose or concur with amend-
ments, as on other bills.
§ 103- This provision is borrowed from the British
Constitution, where the Commons, or Lower House, are
the exclusive representatives of the people. In the
United States it has been continued, in consequence of
the Senators being rather the representatives of the
state governments than of the people.
§ 104. Bills for raising revenue do not include every
[ill which brings money into the treasury; for, bills for
establishing the Post-office, and the Mint, originated in
the Senate; so also bills for the sale of public lands,
though directly productive of money, are not included
in this phrase : its proper meaning is confined to bills to
levy taxes.
§ 105- 2d clause. Every bill which shall have passed
the House of Representatives and the Senate shall, before
it become a law, be presented to the President of the United
States; if he approve, he shall sign it; but if not, he
shall return it with his objections to that House in which
it shall have originated, who shall enter the objections at
large on their journal, and proceed to reconsider it. If,
after such reconsideration, two-thirds of that House shall
agree to pass the bill, it shall be sent, together with the
objections, to the other House, by which it shall likewise be
reconsidered, and if approved by two-thirds of that House
it shall become a law. But, in all such cases, the votes of
both Houses shall be determined by yeas and nays, and the
names of the persons voting for and against the bill shall
be entered on the journal of each House respectively. If
any bill shall not be returned by the President within ten
days (Sundays excepted) afterit shall have been presented
to him, the same shall be a laic, in like manner as if he
had signed it, unless the Congress by their adjournment
prevent its return, in which case it shall not be a law.
§ 106. The power of the President to return bills
with his objections has been repeatedly exercised. It
i>Q CONSTITUTION OP
was exercised, we have seen, by General Washington,
in respect to the bill fixing the ratio of representation;
by President Monroe, in 1817, on the Internal Improve-
ment Bill ; by President Jackson on the Maysville road,
the United States Bank, and in other cases.
§ 1 07. This power, and the mode of its exercise, are
so clearly defined by the Constitution as to admit of lit-
tle doubt or misconception. If the President abuse the
Veto, it is presumed the representatives of the people
will pass the bill in question, by the constitutional ma-
jority of two-thirds.
§ 108. If a bill be not presented to the President more
than ten daysbefore the end of the session, the President
has it in his power to defeat it, by simply withholding
his signature, for he is obliged to return it with objec-
tions (if he has any) only within ten days; of course, if
Congress by adjournment prevent that return within
that time, the bill must fail, if not signed by the Presi-
dent.
§ 109. 3d clause. Every order, resolution, or vote
to which the concurrence of the Senate and House of
Representatives may be necessary (except on a question
of adjournment), shall be presented to the President of
the United States, and before the same shall take effect,
shall be approved by him, or, being disapproved by him,
shall be repassed by two-thirds of the Senate and House
of Representatives, according to the rules and limita-
tions prescribed in the case of a bill.
§ 110. The "order, resolution, or vote" to which the
President's signature is, by this section, required, are
riot those orders, resolutions, and votes which relate to
the separate and internal government of each House
Rules of order, resolutions in respect to their own con-
duct, judgments upon their own elections, votes of cen-
sure and thanks, being matters exclusively relating to
themselves, do not come within the scope of this pro-
vision.
THE UNITED STATES 57
$ 111. Section 8th. Clause 1st. The Congress
shall have power to lay and collect taxes, duties, imposts,
and excises; to pay the debts and provide for the com-
mon defence and general welfare of the United States;
but all duties, imposts, and excises shall be uniform
throughout the United States:
§ 1 1 2. This clause, divided by the semicolon, does
not confer upon Congress two separate powers, one " to
lay and collect taxes," &.c. and the other to "provide
for the general welfare;" but it is the grant of one pow-
er, viz. " to lay and collect taxes," &c. — limited by the
object, which is for the purpose of " providing for the
general welfare."1
§ 113. Taxes are of two kinds, — direct and indirect.
Direct taxes are all burdens imposed immediately upon
the person or estate of the citizen; thus, a tax upon
houses, lands, money, &,c. is a direct tax : indirect taxes
are the burdens imposed upon articles of consumption,
and chiefly upon imported articles; thus, the revenue,
or duty levied upon each yard of broadcloth, or cotton
sheeting, brought to this country from abroad, is an
indirect tax.
§ 114. Indirect taxes increase the price of imported
articles, and thus act as a burden upon those who pur-
chase them. The difference between the two modes of
taxation is this : direct taxes act directly upon the person
and property of the citizen, and is independent of his
will; indirect taxes, by being imposed upon articles
imported from foreign countries, or used in consumption,
leave the people at liberty to pay them or not, by using
or not using the articles upon which they are imposed.
Thus, a farmer cannot avoid the payment of a tax levied
upon his land, but he may avoid the payment of the
duty upon coffee, by not using it. And previous to the
Ueffersor.'s Opinion on the Bank of the United States, 1791 ; Mon-
roe's Message, May, 1822; Hamilton's Report, Dec. 1791 ; 9 Whea-
ton's Rep. 199.
58 CONSTITUTION OF
Revolution, such was the fact, as we all know, in rela-
tion to the duty upon tea. The people, by a patriotic
impulse and common consent, abstained from the use of
tea, and thus prevented the levying of the duty.
§ 115. In genera], all the necessaries of life, such as
coarse clothing, bread, meat, fruit, wood, and iron, are
the productions of our own country,- — so that the whole
import duty, or nearly the whole revenue of the country,
as now levied, is a mere matter of voluntary contribu-
tion upon the part of each and every citizen; hence it
is that indirect taxes, being in a measure unfelt and vol-
untary, are comparatively popular, while direct taxes
are more or less odious.
§ 116. The terms imposts and duties, as now used,
are nearly synonymous;1 but originally, the word duty
had a general signification, as it respects taxes, of which
imposts was a particular application. Now they are
applied indiscriminately to the revenue obtained from
imported articles.
§ 117. The term excise is defined to be a duty on
commodities, but of late it has been confined to a tax on
domestic distilled liquors. In this sense it is a tax, not
only on the productions of the country, but also a tax on
the manufacture of them : it is a tax, at once, upon the
raw material and the labor put upon it. Such a double
duty, it is obvious, could never be imposed by the Legis-
lature, nor borne by any people, but from a conviction
in a large portion of the community, of the disastrous
influence of spirituous liquors, and a strong desire to re-
press their use. Even with this conviction among the
intelligent, an excise duty has never been imposed but
in time of great public emergency, and then at the risk
of civil war. In the year 1793, Congress laid an ex-
cise duty on distilled spirits, and appointed inspectors,
officers, &c. to collect it. This law became so exces-
sively odious to a portion of the people, that notwith-
* Madison's Letter on the Tariff.
THE tJNITED STATES. 59
standing the unrivalled popularity and commanding in-
fluence of General Washington, who was then Presi-
dent, they were excited, especially in the neighborhood
of Pittsburgh, Pennsylvania, into open acts of violence.
The inspectors were attacked in their houses, the mails
robbed, the marshal resisted, and numerous other out-
rages, amounting to open insurrection, were committed.1
At length, the President called out the militia, and by
the display of superior force, and the determination to
use it, quelled the insurgents. In this brief history, we
see the effect of excise duties, of which the chief cause,
next to the appetite for spirituous liquors, may be found
in the onerous nature of a tax both upon labor and pro-
duction.
§ 118. But all duties, imposts, and excises, must be
uniform. In the case of Hylton vs. United States,2 the
Supreme Court decided that a duty levied indiscrimi-
nately upon all carriages was not a direct tax, and was
therefore properly laid, and uniform. Had it been a
direct tax, it must, according to a previous provision of
the Constitution, (§ 42), have been apportioned in pro-
portion to the population of the several states.
§ 119. In the case of Loughborough vs. Blake,3 the
court decided that the. power of Congress to tax exten-
ded over the' District of Columbia, and all other terri-
tories; that the power of taxation was co-extensive with
the government, but that when exercised, direct taxes
must be in proportion to the population. The court
decided that Congress were not obliged to extend taxa-
tion to the territories, although when they did so, the
Constitution gave a rule of assessment.
§ 1 20. 2cl clause. To borrow money on the credit of
the United States:
This power has been constantly exercised, and for
the plain reason that no state or government could
» 5 Marshall's Washington, 585. 2 3 Dallas, 171.
3 5 Wheaton, 317.
50 CONSTITUTION OF
subsist without it. Every war, especially under a fru-
gal and economical government like ours, imposes upon
the government the necessity for greater revenues than
the ordinary taxes can supply; the consequence is a
national debt. But the same simplicity and frugality
which keep the revenue below the lavish demands of
war, furnish the means of speedily extinguishing the
debts which result from it. Thus, in our country, the
year 1816 found the nation more than 1 20 millions in
debt; the year 1834, — 18 years afterward, — found it
not only out of debt, but its statesmen actually contend-
ing about the surplus revenue!
§ 121. Clause 3d. To regulate commerce with foreign
nations and among the several states, and with the Indian
tribes:
§ 1 22. The power given in this paragraph has been
the origin of many important legislative provisions, of
which some have given rise to judicial decisions, and
others to frequent and severe political discussions. In
a very celebrated case, Gibbons vs. Ogden,1 arising
under the Steamboat Laws of New-York, the Supreme
Court of the United States have solemnly decided the
meaning of the phrase to regulate commerce.
§ 123. The term commerce, in that decision, is deci-
ded to comprehend navigation, and the power to regu-
late navigation is as expressly given as if it had been
added to the word commerce.
§ 124- The power to regulate commerce extends to
every species of commercial intercourse between the
United States and foreign nations, and among the sev-
eral states. Bat it does not comprehend that com-
merce which is internal, as between man and man, and
between different parts of the same state. It does' not,
however, stop at the jurisdictional lines of the several
states, but extends wherever the subject of it exists.
§ 125. The power to regulate commerce is the
i 9 Wheaton, 189, 193.
THE UNITED STATES. gj
power to prescribe the rule by which commerce is to be
governed.
§ 126. The power to regulate commerce extends as
well to vessels employed in carrying passengers as to
those in transporting goods, to vessels navigated by fire
and steam as to those by sails.
§ 127. The law regulating the coasting trade, in
relation to which these decisions were made, was
passed in February, 1793. From that day to this,
Congress have been in the constant exercise of the
power to regulate commerce. They have passed laws
to regulate commerce, as such, to lay embargoes, navi-
gation acts, &»c.
§ 128. By the Embargo Act, December, 1807? a
prohibition was laid of exportation from the United
States, either by land or water, of any goods or wares,
either foreign or domestic. In the case of the United
States against the Brigantine William,1 this act was
controverted, as unconstitutional: but the court decided
that the embargo act was constitutional; that non-
intercourse and embargo laws are within the range
of legislative discretion ; and that the power of Congress
was sovereign relative to commercial intercourse.
§ 129. Within a few years, another question has
arisen under the power to regulate commerce. Political
zeal and party spirit have originated an idea, which cer-
tainly, so far as authentic history goes, never entered
into the heads of the framers of the Constitution. This
notion is, that a law imposing duties for the protection
of domestic manufactures is not constitutional. It is ad-
mitted, that any amount of imposts and duties may be
levied upon any articles for the purpose of revenue, and
that the protection arising from this impost, being inci-
dental, is constitutional, — but that these same imposts
being imposed for protection so called, are not constitu-
tional. This is in reality a distinction without a differ-
i 2 Hall's Law Journal. 255.
62 CONSTITUTION OF
ence; for, according to the theory itself, Congress, with-
out transcending their powers, may levy the whole
revenue from particular articles, and thus create not
only a protection against, but an absolute prohibition of
them. But, suppose the bill was enacted for protection
merely, and let us examine briefly the principles and
authorities applicable to it. It is neither necessary nor
proper here to enter into a detailed argument upon the
subject, but the matter may be stated in a few propo-
sitions with sufficient force to make the conclusion
irresistible.
§ 130. The avowed objects of the Constitution, as ex-
pressed in the preamble, are to provide for the common
defence, and promote the general welfare ; for this pur-
pose various means are provided, and among others the
express power given " to lay imposts, duties, and ex-
cises, to provide for the common defence, and promote
the general welfare." Now, it is perfectly apparent,
that neither of these provisions can be carried into
effect without such discriminating duties as will encou-
rage and protect the domestic manufacture of the muni-
tions of war, and of necessary clothing.
§ 131. The power to regulate commerce includes
every thing in relation not only to the mode of carrying
it on, but also to the terms upon which it shall be carried
on.1 Those terms, therefore, may be arranged either for
the purpose of raising revenue or protecting manu-
factures, as suits the legislator. The government has
a discretion, which it may exercise as it pleases.
§ 1 32. The meaning of the phrase, to regulate trade>
must be gathered from the use of it among commercial
people, and the manner in which it was understood by
those who used it in making and adopting the Constitu-
tion.2 In both these cases- it was understood to include
the encouragement of manufactures.
§ 133. The Supreme Court is vested with power to
1 Madison's Letter on the Tariff. * Ibid.
THE UNITED STATES. 63
decide on the constitutionality of all laws : this point has
not been directly before them, but they may be consid-
ered as having decided it upon principle, by the appli-
cation of certain rules which they have laid down.
§ 134. The court have decided1 that the power to
regulate commerce is the power to prescribe the rule by
which commerce shall be governed;
§ 135. That, like all other powers vested in Con-
gress, it is complete in itself, and has no other limits
than such as are prescribed in the Constitution;
§ 136. That the power to regulate implies in its na-
ture full power over the thing to be regulated.
§ 1 37- Now, if Congress have power to tax all arti-
cles in all modes (as they have, under the clause to lay
duties, imposts, Sic), and have besides the power to
regulate commerce without limitation as to the subject
matter, then it is impossible to avoid the conclusion, that
they have the power to make any discrimination whatev-
er, in the duties to be levied, no matter for what purpose,
whether of revenue or protection, is answered thereby.
§ 138. But if anything were wanting to make con-
viction perfect, it would be found in the uniform practice
of the government, whether administered by those who
jvere co-laborators in its formation, or by those who
grew up under it from the adoption of the Constitution
to the present day; in the opinions often expressed, of
the wisest and most distinguished statesmen; and final-
ly, in the admissions of the ablest opponents of the pro-
tective policy.
§ 1 39. The power to regulate commerce is exclusive
in the general government.3 The full power to regu-
late a particular subject implies the whole power, and
leaves no residuum. A grant of a power to regulate
necessarily excludes the action of all others, who would
perform the same thing.
1 Gibbons vs. Ogden, 9 Wheaton, 189.
*B*own vs. Maryland, 12 Wheaton, 419, 445.
64 CONSTITUTION OF
§ 140- The power to regulate trade and commerce
extends to the coasting trade and fisheries, within or
without a state, wherever it is connected with other
states, or with foreign nations ; it extends to the
regulation and government of American seamen on
board of American ships, and to conferring privi
leges upon American ships in domestic as well as foreign
trade.1
§ 141. It extends also to quarantine, pilotage, and
salvage laws ; to the construction of light-houses; to the
removal of obstructions in creeks, harbours, and sounds ;
and to the establishment of ports of entry for the pur-
poses of foreign commerce.
§ 142. These powers have all been exercised in the
enactment and enforcement of various laws regulating
the collection of the revenue, the government of sea-
men, the mode of navigation, and the improvement of
harbours.
§ 143. This section of the Constitution contains also
the power, which has been often exercised, of regulat-
ing intercourse with the Indian tribes. The Supreme
Court have decided2 that Congress have the exclusive
right of pre-emption to all the Indian lands within the
territories of the United States. This right" the United
States have constantly exercised; neither the states
nor any individuals are allowed to purchase lands from
the Indians.
§ 144- In the case of the Cherokee Nation vs. Geor-
gia,' it was decided that a tribe, situated within the ter
ritorial limits of a state, but exercising the powers of
government and national sovereignty, under the guaran
tee of the general government, is not a foreign state in
the sense of the Constitution; but is entitled to sue in
the courts of the United States. Such a tribe is to be
deemed politically a state, that is, a distinct political so-
i 2 Story's Comra. 518. 2 2 Wheaton, 543 ; 6 Cranch, 142.
» 5 Peters' R. 1, 16, 17. 9 Wheaton, 203, 209.
THE UNITED STATES. 65
ciety, but is not a foreign state.1 It is a domestic de-
pendent nation, and is to be deemed in a state of pupil-
age. Its relation to the United States is that of a ward
to a guardian.
§ 145. As it respects foreign nations, the Indian
tribes within the limits of the United States are con-
sidered as completely within the control and protection
of the United States; so that the interference of any
foreign nation with those Indian tribes, or an attempt
to seduce their good-will from the United States, would
be considered as a cause of war.
§ 146. 4th clause. To establish a uniform rule of
naturalization, and uniform laws on the subject of bank-
ruptcies throughout the United States.
§ 147- This provision vests the power of naturaliza-
tion exclusively in the United States.2 In pursuance
of this power, Congress have passed a series of laws
prescribing the mode of naturalization. Of the classes
of persons who may come under these provisions there
are three, — 1st, Aliens of full age; 2d, Aliens, minors;
3d, Children of citizens born in foreign countries.
§ 148. ~ist. The laws provide3 that any alien of full
age shall be admitted to citizenship in the following man-
ner. 1st. He shall declare on oath, or affirmation, be-
fore any court of record, having common law jurisdic-
tion, a seal and a clerk, in any state or territory, or a
circuit or district court of the United States, or before
the clerks thereof, two years at least before his admis-
sion, that it is bona fide his intention to become a citi-
zen of the United States, and renounce for ever all alle-
giance to any foreign prince or state of which he may at
the time be a citizen or subject. 2d, That he shall, at
the time of his application to be admitted, declare on
oath, before the aforesaid courts, that he will support the
i Worcester vs. Georgia, 6 Peters, 559. * 2 Wheaton, 259, 269.
» Act of April, 1802, as amended by the acts of 1804, 1813, 1816,
1824, and 1S28.
G*
66 CONSTITUTION OF
Constitution of the United States, and does absolutely
renounce and abjure all allegiance to any foreign prince
or state whatever; and particularly that prince or state
whereof he was before a citizen or subject, which pro-
ceeding shall be recorded by the clerk of the court.
3d, That the court admitting such alien shall be satis-
fied that he had resided within the United States the
continued term of Jive years next preceding his admission,
without being during that time out of the United States,
and one year at least within the state or territory where
such court is held; and that, during that time, he has
behaved as a man of good moral character, attached to
the principles of the Constitution, and well disposed to
the good of the same, — provided the oath of the ap-
plicant shall not be allowed to prove his residence.
4th, That if the alien applying to be admitted shall have
borne any hereditary title, or been of any of the orders
of nobility in the kingdom or state whence he came, he
shall, in addition to those requisites, expressly renounce
his title or order of nobility, in the court to which his
application shall be made, and it shall be recorded;
provided, no alien who shall be a citizen or subject of
any country at war with the United States at the time
of his application, shall be admitted as a citizen of the
United States.
§ 149. 2d. Free white minors,1 who have resided in
the United States three years next preceding their arrival
at twenty-one years, and who shall have continued to re-
side therein till the time they may make application, may,
after their arrival at twenty-one years of age, and after
they shall have resided in the country five years, within
the United States, including three years of their minority,
be admitted without having made the declaration first re-
quired ; provided they shall make such declaration at the
time of their admission, and shall further declare on oath,
and prove to the satisfaction of the court, that for three
i Act of May, 1824:
THE UNITED STATES. (37
years next preceding, it has been the bona fide intention
of such alien to become a citizen of the United States,
and shall otherwise comply with the laws lelative to
naturalization.
§ 150. The children of naturalized persons, or of
those who have become citizens previous to the passage
of any law upon the subject, and were under twenty-
one at the time of their parents' admission to citizen-
ship, shall, if dwelling in the United States, be consid-
ered citizens of the United States.
§151. 3d. The children of those who now are or have
been citizens of the United States shall, though born out
of the limits and jurisdiction of the United States, be
considered as citizens; provided the children of those
who have never resided within the United States shall
not be so considered.
§ 152. And it is further provided,1 that if an alien
make the declaration in the first condition, and pursue
the other requisitions as far as may be, and die before
he is actually naturalized, the widow and children shall
be considered as citizens, and entitled to all the rights ot
citizens, upon taking the oaths prescribed by law.
§ 153. An alien is, by the Common Law,2 without
power to hold real estate. Several of the western
states, as Ohio, &>c, have abrogated this part of the
common law by statute, for the encouragement of emi-
gration.
§ 1 54- The power to pass a general Bankrupt Law is,
by this section, vested in Congress. This power was
once exercised by Congress in April, 1800; but the law
was repealed in 1803. Many efforts have been made
since to obtain from Congress a general Bankrupt Law ;
but, in consequence of a disagreement upon the details,
none has been passed. The several states have fre-
quently passed Insolvent Laws ; but as another part of
the Constitution, of which we shall speak hereafter, ren-
» Act of March, 1804. a 2 Blackstone's Comm. 249, 293.
68 CONSTITUTION OF /
ders all acts impairing the obligations of contracts void,
there has been much doubt as to the constitutionality
and effect of these laws.
§ 155. The Supreme Court have now determined, by
a series of decisions the following points :l
1st. That State Insolvent Laws cannot discharge the
obligation of antecedent contracts;
2d. That the power of Congress to pass Bankrupt
Laws is not an exclusive grant, • it may, therefore, be ex-
ercised within constitutional limits by the states;
3d. That a state may pass valid laws discharging the
person of the debtor and his after-acquired property
from debts contracted after the passing such law;
4th. That such a discharge is valid only between the
citizens of the state by which the law was passed;
5th. That the Insolvent Law of one state does not dis-
charge the debtor from debts which he has incurred in
another state.
§ 156. 5th clause. To coin money, regulate the value
thereof, and of foreign coin, and fix the standard of
weights and measures.
§ 157. The power conferred by this paragraph has
been long and efficiently exercised, so that the Ameri-
can coinage has supplied much of the currency of the
country, and holds a high rank among foreign nations.
The Mint of the United States is an office, with
the proper officers, created by Congress in 1792,2 and
has been in operation ever since. Every person may
bring gold and silver to the mint to be coined, and if it
is of the standard value, is assayed and coined free of
expense; but if below the standard, enough is retained
to pay the expense of coinage. The coinage of the
United States is entirely decimal, and, therefore, in prac-
tice, more convenient than that of any other nation.
Thus, the Spanish milled dollar is taken as the unit,
»4 Wheaton's R. 122; 12 Wheaton's R. 273. *Act of April
1792.
THE UNITED STATES. 69
and all smaller coin is in tenth parts of that, and all gold
coin in tens above; as the dime is the tenth part of a
dollar, and the eagle ten dollars. That part of this
clause which relates to the standard of weights and
measures, has never been acted upon, — although nothing
could conduce more to the accuracy of trade, or the
convenience of commerce. Several elaborate, and sci-
entific treatises have been produced upon the subject,
for the information of Congress, among which is the able
Report of Mr. J. Q. Adams. In the meantime, the pow-
er is sometimes exercised by the states.
§158. 6th clause. To provide for the punishment of
counterfeiting the securities and current coin of the United
States;
Congress have exercised this power by making the
crime of counterfeiting a felony, punishable by impris-
onment, fine, &lc. This power is consequential to the
preceding, — that of coining money and regulating its
value.
§ 159. 7th clause. To establish Post-offices and
J*ost-roads;
The establishment of Post-offices and Post-roads
has existed since, and before the organization of the
present government. Being a branch of public admin-
istration co-existent with commerce, social intercourse,
and the diffusion of knowledge, it has grown with the
increase of the general prosperity, and has become,
from small beginnings, an immense and complicated
machinery. In 1848 the number of Post-offices was 16,000,
and the number of miles in Post-roads 152,865 ; and this
number is constantly increasing.
§ 160 To establish Post-roads and Post-offices
means simply to make any given road a post-route^ and
appoint in any given place a post-master. The routes
are established by act of Congress, but it is the duty of the
postmaster-general to appoint postmasters at all such
l Act of April, 1806.
70 CONSTITUTION OF
places as he may judge best, and expedite the mail as
frequently, on established routes, as the public interest
may require.
§ 161. The power to establish Post-offices and
Post-roads being given, the consequential powers neces-
sary to carry it into execution are likewise given; as,
for example, the power to secure the safety and speedy
transportation of the mail.1 Congress have accordingly
made the robbery of the mail a felony, and prohibited,
under high penalties, the obstruction of the mail? Under
this act the Supreme Court2 have decided, that even a
stolen horse, found in the mail stage, could not be
seized, and that the driver could not be arrested on civil
process in such a way as to obstruct the mail. But
it was subsequently decided, that this was not to be
carried so far as to endanger the public peace by inter-
fering with criminal process.1 Thus, a felon may be ar-
rested in the mail stage, or the driver, if he had commit-
ted murder.
§ 162. Under the power to establish Post-roads has
arisen the question of Internal Improvements. Though
much agitated, it is not settled, and I shall give here
merely the different authorities upon the subject, whether
Legislative, Executive, or Judicial.
§ 163. 1st. Of the Legislative opinions upon the sub-
ject. By the Act of March 3d, 1 803, Congress con-
cluded a compact with the state of Ohio, by which
three per cent, of all the moneys derived from the sale
of public lands within the State of Ohio were reserved
for the construction of roads within that state. The
consideration was, that the lands of the United States in
that state should not be taxed. Whether by inadver-
tence or intention, this act clearly acknowledged the
power of the general government to make Internal Im-
provements j for the appropriation was made by the
»Act of April, 1810. 3 3 Hall's Law Journal.
*1 Peters' Rep. 390.
THE UNITED STATES. 71
United States, and the funds were derived from the prop-
erty of the United States. It could be no objection to
this reasoning that the work was to be done by the
state; for it is an established principle, that "he who
acts by another, acts by himself." Neither is it an ar-
gument to say there was a consideration ; for, " what
one cannot do directly he cannot do indirectly." This
was so understood by Congress, for in several subse»
quent acts they authorized the construction of roads
within the North-west Territory.
§ 164- The next step taken by Congress1 was the
construction of the Cumberland Road. This road was
commenced in 1 806, and in a few years finished from
Cumberland, on the Potomac, to Wheeling, on the Ohio.
In 1820, Congress resumed the construction from Wheel-
ing westward, and it is now in progress through the
western states. This work was undertaken on the
ground of the compact with Ohio. By the terms of a
compact made between that state and the United States,
Jive per cent, of all the moneys arising from the sale of
public lands within that state were to be applied to the
making of roads "leading from the navigabfe waters of
the Atlantic to the Ohio." This, however, falls within
the same principles already stated, in reference to the
three per cent, fund; and as the sum drawn from the
reserved funds was soon greatly exceeded, the work has
since been conducted simply on the ground of internal
improvement.
§ 165. The next act2 was the opening of the roaa
from Athens, in Georgia, to New-Orleans, and from
Nashville to Natchez. In 1 809, the Canal of Car-onde-
let3 was extended to the Mississippi by the general
government.
§ 166. In 1811, Congress directed4 the survey and
making of two roads, — one from the Rapids of tho
i Act of March, 1806. * Act of April, 1806.
3 Act of February, 18Q0 * Act of December, 1811.
72 CONSTITUTION OF
Maumee to the Western Reserve, and another from
Sandusky to the Greenville Line.
§ 167. By several successive acts in 1812, 1816,
1817j and 1818, Congress confirmed their former de-
cisions, by making surveys of, and authorizing the con-
struction of roads ; till it would seem that, practically,
there was no doubt in the National Legislature upon the
subject. The matter has, however, been several times
tested by the interposition of the Executive Veto.
§ 168. A bill to set apart a portion of the bank bonus
and dividends for the purpose of Internal Improvement
was passed in 1817? and returned by Mr. Madison,
who denied the power of Congress to construct roads
and canals, or improve water-courses. The House of
Representatives, however, re-affirmed their power by a
vote of sixty to fifty-six.
§ 169. At the succeeding session, Mr. Monroe, in his
message, also denied the constitutional power of Con-
gress to make Internal Improvements. The House soon
after passed a resolution, ninety to seventy-five, declar-
ing that Congress, under the Constitution, had power to
construct roads and improve water-courses.
§ 170. From this period Internal Improvement seem-
ed the settled policy of the government for several years.
In 1822, Mr. Monroe, indeed, interposed his veto on
the bill providing for the Collection of Tolls on the
Cumberland road; but, the objection was not to the
power of making roads, but to the Collection of Tolls
upon it, as being inconsistent with the jurisdiction and
sovereignty of the soil. This, however, was not deemed
an impediment to the construction of public works, for
Congress immediately took measures to organize a sys-
tem of surveys and reports, in relation to such roads and
canals as the public interest might require; and in April,
1824, what is called the Survey Bill became a law.
It appropriated $30,000 for the purpose of making sur-
veys of different parts of the country, and authorized
/
THE UNITED STATES. 73
the employment of the Engineer Corps in that service.
Soon after the passage of this bill, the accession of a
new administration, decidedly favorable to Internal Im-
provement, gave the system a new impulse, and from
that time forward Congress enacted many laws affirming
and enlarging these powers. They subscribed a large
amount of stock to the Ohio and Chesapeake Canal,
to the ' Dismal Swamp Canal, and the Louisville and
Portland Canal. They made appropriations for the
improvement of numerous harbours, rivers, &,c. &c, —
for the making of Military Roads, — for the continuance
of the Cumberland Road, and various other public
works. A practical check was given to this system by
President Jackson, in his veto on the Maysville Road
Bill, of which I shall speak hereafter. Congress, how-
ever, remained unchanged. By the passage of the
Harbour Bills, and numerous other items for roads and
improvements in other bills, they have manifested a
fixed opinion in favor of their power to construct roads
and other public works.
§ 171- The result deduced from this Legislative
History is, that Congress have uniformly asserted their
power, under the Constitution, to construct and hold,
with the public funds, public works, under the denomi-
nation of Internal Improvements. We shall now exam-
ine the opinion of another branch of the government.
§ 172. 2d. Of the Executive opinions. During the
administration of Washington and the elder Adams, the
power of Congress in respect to Internal Improvements
was neither exercised nor much examined, and there-
fore no executive opinions were formally advanced
Under the administration of Mr. Jefferson, we have
already seen the compact was made with Ohio, and the
Cumberland Road undertaken. To both these acts
Mr. Jefferson gave his assent, and it is difficult to see
in what respect these works differ from other public im-
provements j yet, by his message of December 2d, 1 806j
7
74 CONSTITUTION OP
he denied the power of Congress to make roads and im-
prove water-courses, though he earnestly recommended
the grant of such powers by the states. The reason
given was, that this power was not enumerated among
the powers of Congress. The authority of Mr. Jeffer-
son, therefore, may be considered as decidedly against
the power to make internal improvements, though he
was most earnestly in favor of granting such a power
to the government.
§ 173- Mr. Madison, in 1796, spoke in favor of a
resolution relative to a survey of a road from Maine to
Georgia; yet, in 1815, in his Message to Congress,
while strongly recommending to Congress " the great
importance of establishing throughout our country the
roads and canals which can best be executed under
national authority," intimated that any defect in the con-
stitutional potter might be supplied in the mode provi-
ded by the Constitution.
In 1817, Mr. Madison placed his Veto upon the bill
providing means for the construction of roads and
canals, and the improvement of water-courses. He de-
nied the constitutional power of Congress to make such
works, and thus gave his judgment also in the negative.
§ 174. In Mr. Monroe's first message to Congress,1
he declared his agreement with his predecessors, and
doubt of the constitutionality of such works. After the
passage of the Resolution of Congress, in 1818, affirm-
ing the power, he is understood to have withdrawn his
opposition, and during his administration, appropriations
for such purposes greatly increased. In 1 822, however,
he placed his veto7 upon the act for the erection of Toll-
gates and the collection of Tolls on the Cumberland
Road. This he considered as requiring the juris-
diction and sovereignty of the soil, which the general
government did not possess.
§ 175. Mr. John Quincy Adams strongly recom
» December, 1817. * May, 1822.
THE UMTED STATES. 75
mended and encouraged Internal Improvements. Dur-
ing his administration, the system seemed to have be-
come "a part of the permanent policy of the country.
Numerous surveys were completed, and large sums ap-
propriated for various public works.
§ 176. General Jackson, while a member of the
Senate, is understood to have had no constitutional
scruples upon the subject; but, by his veto upon tho
well-known Maysville Road Bill,1 he gave his influence
in the negative. In whatever manner this document
may be judged of, during the heat of temporary party
controversies, there can be no doubt that it contains a
temperate and judicious review of the question, and a
correct decision upon the particular point submitted to
him. That point was, the propriety of constructing by
the general government a local road entirely within one
state. There is no doubt that if the power of making
Internal Improvements exist in the general government,
it must be confined to national, not local objects.
General Jackson, however, went further than this, and
deemed that all the power which had been uninterrup-
tedly exercised upon this subject, viz. that of appropri-
ating money, was insufficient and unsafe for the success-
ful prosecution of national works. He regarded it,
notwithstanding the usage was admitted, as improper to
exercise powers not granted, and which might easily be
conferred.
§ 177- Since this message, the Executive influence
has been altogether opposed to Internal Improvements,
and they have made little progress.
§ 178. We have now seen that the opinions of
Presidents Jefferson, Madison, Monroe, and Jackson
were opposed upon constitutional grounds to the exer-
cise of such a power by the general government; but
that all of them, except the latter, were in favor of the
measures themselves, and under all their administra-
» Message, 27lh May, 1830.
76 CONSTITUTION OF
tions, except also the last, many national works were
undertaken. President Adams alone conceded both the
theory and practice.
The conclusion of the whole then is, that the weight
of Legislative authority has been uniformly in favor of
the power, while that of Executive authority has been
against it.
§ 179. 3d. Of Judicial opinions we have none ex-
cept general decisions upon the indirect powers of Con
gress.
The Supreme Court decided, that a contemporary
exposition of the Constitution practised, and acquiesced
in for a number of years, fixes the construction of the
Constitution, and the court will not shake or alter it.1
Also, that there is nothing in the Constitution of the
United States which excludes incidental or implied
powers.2
The two principles here cited might be considered as
showing an inclination in the Supreme Court to sustain
the power claimed by Congress. Yet, as it may be long
before the question will come before that tribunal, it
may be considered as open to discussion.
§ 1 80. Clause 8th. To promote the progress of sci-
ence and the useful arts, by securing, for limited times,
to authors and inventors, the exclusive right to their
respective writings and discoveries:
§ 181. In England it was solemnly decided,3 that an
author had, by Common Law as well as by Statute, an
exclusive right to his own works. In this country,
Copy-rights and Patent-rights are derived from Acts of
Congress, founded on this provision of the Constitution
§ 182. The acts4 relative to Patents, direct that
"Patents may be obtained for any new and useful art,
machine, manufacture, or composition of matter not
known before the application." The term for which a
» 1 Cranch, 299. 2 4 Wheaton, 316. 3 4 Burrows' Rep. 2303.
« Acts of February, 1793, and April, 1800.
THE UNITED STATES. 77
Patent may be obtained is fourteen years. Sacha law
would seem to be an effectual protection to inventors
against an infringement of their rights, yet we may see
in the Life of Whitney1 of how little avail it is against
the pressing interests of society. In Georgia, no jury
could be found to give him a verdict of damages for the
open violation of his Patent for the Cotton Gin, — an
invention which had doubled the value of cotton !
§ 183. Copy-rights were formerly secured for four-
teen years; now, by the Act of February, 1831, in every
respect better than the former, the term is prolonged to
twenty-eight years, and at the expiration of that time, the
author (or. if he be dead), his wife or children, may re-
new it for fourteen years longer.
§ 1 84. Clause 9th. To constitute tribunals inferior
to the Supreme Court: To define and punish piracies
and felonies committed on the high seas, and offences
against the Law of Nations:
§ 185- In another place we shall consider what re-
lates to the Supreme and Inferior Courts.
By the Law of Nations, and by the Common Law,
Piracy is defined to be — robbery on the high sea, that is,
the same crime which, when committed on the land, is de-
nominated robbery.2 Piracy is against all nations, and
punished by all. A plea which would be good in one
civilized state, would be good in all.
An alien under the sanction of a national commission,
cannot commit piracy while he pursues his authority.3
Hence, the Barbary states are regarded as lawful pow-
ers, and not pirates.
§ 186. Felony, at Common Law, comprises every
species of crime which occasions the forfeiture of lands
and goods. These, under the English Law, were most
crimes punishable with death, such as murder, forgery,
theft, &c. But this does not include all offences on the
i See Silliman's Journal. * Blackst. Comm. 71, 72.
3 1 Kent's Comm. 176.
v
78 CONSTITUTION OF
high seas,* for example, Lord Coke says that piracy is
not felony, because punishable by the civil and not the
common law.
§ 187- The High Seas means all the waters of the
ocean, whether within the territorial boundaries of a
foreign nation or of a domestic state-
Between high-water mark and low-water mark, where
the tide ebbs and flows, the Common Law and the Ad-
miralty hold alternate jurisdiction,' one upon the water
when it is full sea, the other upon the land when it
is ebb.
The high seas, here defined, however, do not extend
to creeks and inlets, but, as it respects the states, means
that part of the ocean which washes the sea-coast, and
is not included within any county.
§ 188- Congress, by various enactments, have exer-
cised the powers vested in them by this section, and
have affixed various punishments to the crimes of trea-
son, murder, robbery, piracy, &c.
§ 189. Congress has power to provide for the pun-
ishment of offences committed by persons serving on
board a ship of war of the United States, wherever that
ship may be: but Congress has not exercised that pow-
er in the case of a ship lying in the waters of the
United States.2
. § 190. Clause 10th. To declare war, grant letters of
marque and reprisal, and malcc rules concerning captures
on land and water:
§ 191. These powers are attributes of sovereignty;
they are vested in the national government, and not in
the states. The power of declaring war is the highest
which the government possesses, and involves directly
the happiness and existence of the people: as it is called
the last resort of kings, so it is certainly the last appeal
of nations.
§ 192. To grant letters of marque and reprisal is
» 5 Wheaton's Rep. 184, 200, 204. * 3 Wheaton, 336.
THE UNITED STATES. 79
but a part of the power to declare war; for such an act
would unquestionably produce war.
§ 193. The power of "making rules concerning cap-
tures on land and water," which is superadded in the
Constitution to that of declaring war, is not confined to
captures which are extra-territorial, but extends to rules
respecting enemies' property found within the territory,
and is an express grant to Congress of the power of
confiscating enemies' property found within the territo-
ry at the declaration of war, as an independent power,
not included in that of declaring war.1
§ 194. Clause 11th. To raise and support armies,
but no appropriation of money to that purpose shall be
for a longer term than tiuo years:
§ 195- The United States have always had a small
standing army, to keep up the forts on the sea-board and
awe the Indians. The provision preventing an appro-
priation for a longer period than two years was for the
obvious purpose of keeping the standing army always
within the immediate control of the people.
§ 196. Clause 12th. To provide and maintain a
navy:
This, like the provision to maintain an army, is a con-
sequence of the general power to declare war, and is
absolutely necessary to national existence. The United
States have long had a respectable navy, and all the
provisions necessary to its organization, support, and
increase, have been provided for by law.
§ 197- Clause 13th. To make rules for the govern-
ment and regulation of the land and naval forces:
Congress have established, by law, rules and articles
of war for the government of the army,2 and rules and
regulations for the government of the navy.8 These
rules provide for the discipline of the service, the mode
of trial, and the punishment for offences. The rules
and articles of war must be read at the head of each
» 8 Cranch, 1 10. 2 Act of April, 180G. 3 Act of April, 1800.
80 CONSTITUTION OF
corps every six months, and are to govern as well the
militia in service as the regulars, but the militia are to
be tried by their own officers.
§ 198. Whatever crimes are committed on board of
public ships of war of the United States, whether in port
or at sea, are exclusively cognizable and punishable by
the government of the United States.1 The public ships
of sovereigns, wherever they may be, are deemed to be
extra-territorial, and enjoy the immunities from the
local jurisdiction belonging to their sovereign.2
§ 199- Clause 14th. To provide for calling forth the
militia to execute the laws of the Union, suppress insur-
rections, and repel invasions:
Clause 1 5th. To provide for organizing, arming, and
disciplining the militia, and for governing such part of
them as may be employed in the service of the United
States, reserving to the states respectively the appoint-
ment of the officers, and the authority of training the
militia according to the discipline prescribed by Con-
gress:
§ 200. Upon these two provisions, and a subsequent
one, that the President shall be commander-in-chief of
the militia when called into actual service, rest the
whole power oFthe national government over tHe militia.
Upon two occasions only has the power to "call forth
the militia to execute the laws, suppress insurrections
and repel invasions," been exercised, — one the insur
rection in Pennsylvania in 1794? the other to. repel the-
invasion of the enemy during the war of 1812. Some
serious questions have arisen under this power. In
consequence of a requisition made by President Madison
on the governors of Massachusetts and Connecticut for
their quotas of militia, a question arose between the
general and state governments in relation to this power.
In that and following discussions, these questions wern
made :
i United States vs. Bevans, 3 Wheatou, 336. * Idem.
THE UNITED STATES. 81
1. Who is to determine when the exigency pointed
out by the Constitution has happened?
2. Whether the President can place the militia under
the command of any one but himself?
3. Whether he can detach parts of the militia corps?
§ 201- On the first question, the governors of Con-
necticut, Massachusetts, and Rhode Island, with the
Supreme Court of Massachusetts, held1 that the govern-
ors of the states were to judge ichen the exigency con-
templated by the Constitution had happened. This
doctrine, however, was denied by President Madison in
his Message to Congress, and the question has since
been solemnly settled2 by the Supreme Court of the
United States. It was then settled that the authority
to decide belongs exclusively to the President. The
act of 1795, providing for the mode of calling out the
militia, was framed on this principle. The' law con-
templates that, in certain exigencies, orders shall be
given to carry the powers into effect, and no person can
have a right to disobey them. No provision is made
for an appeal from, or review of, the President's opin-
ion. And whenever a statute gives a discretionary
power to any person, to be exercised by him upon his
own opinion of certain facts, the general rule of con-
struction is, that he is thereby constituted the sole and
exclusive judge of the existence of those facts.3
§ 202. The power to govern the militia, when in the
service of the United States, is an exclusive one; for any
such power concurrent in other authorities would destroy
all unity of action and command.
§ 203. There is nothing in the Constitution to pro-
hibit, a state from calling forth its own militia to assist
the United States, when that militia is not in the ser-
vice of the United States, to suppress insurrections and
repel invasions. Such a concurrent exercise of power
» Martin vs. Mott; 12 Wheaton's Rep. 30, 31.
812Wheaton, 19, 31,32.
82 CONSTITUTION OF
does not interfere with, or obstruct the exercise of, the
powers of the Union.
§ 204. Upon the questions whether the President
can delegate his authority, or detach parts of the militia
corps, different opinions have been advanced by the
state and national authorities. Thus, Connecticut and
Massachusetts, during the war, asserted that he could
not; President Madison, that he could. The latter
seems the general opinion, and is certainly most conso-
nant to reason.
§ 205. By the act of May, 1792, Congress provided
for the organization, arming, and disciplining of the
militia. By that act, directions were given as to the
mode in which the President was to give his orders j
and refusal or neglect to obey them was declared a
public offence, and the mode of trial, by court-martial,
was pointed out. In relation to this act, the Supreme
Court have decided,1 that the militia, when called into
actual service, were not to be considered in that service,
or as national militia, till they were mustered at the
place of rendezvous; and that until then, the state retain-
ed a right, concurrent with the government of the Uni-
ted States, to punish their delinquency. If the militia,
when called into the service of the United States, refuse
to obey the order, they remain within the military con-
trol of the state, and it is competent for the state to pro-
vide for trying and punishing them by a state court-
martial.
§ 206. In addition to the act of 1792, Congress have
passed several other acts upon this subject. In Feb-
ruary, 1795, a law was passed, calling forth the militia,
in contemplation of the well-known Whiskey Insurrec
tion. In May, 1820, they passed an act providing thai
the system of discipline observed by the militia through
out the United States should be the same as observed
by the regular army.
l. Huston vs. Moore; 5 Wheat. Rep. 1.
THE UNITED STATES. 83
§ 207- A court-martial that imposes a fine upon a
man not liable to militia duty are trespassers, as well
as the officer who distrains for such fine.1
§ 208. Clause 16. To exercise exclusive legislation in
all cases xchatsoever, over such district (not exceeding ten
miles square) as may, by cession of particular states, and
the acceptance of Congress, become the seat of govern-
ment of the United States, and to exercise like authority
over all places, purchased by consent of the Legislature
of the state, in which the same shall be, for the erection
of forts, magazines, arsenals, dock-yards, and other
needful buildings; And
Clause 17. To make all laws which shall be necessary
and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution
in the government of the United States, or in any depart-
ment or officer thereof.
§ 209. In pursuance of the power to exercise exclu-
sive jurisdiction, &c. &c, Congress, in July, 1790, ac-
cepted of a grant from Virginia and Maryland, of ten
miles square, on the Potomac, for the seat of govern-
ment, which is the present District of Columbia. Over
this territory Congress have exclusive jurisdiction, and
exercise all legislative powers.
§ 210. The jurisdiction over various other sites, as
West Point, &-c, has been granted by the Legislatures
of the respective states in which they lie, for military
and naval purposes.
§ 211. The power to exercise exclusive jurisdiction
includes the power to tax.2
§ 212. Congress have the power of general as well
as local jurisdiction, in reference to acts committed
within that jurisdiction.3
§ 21 3. The states cannot take cognizance of any acts
done in the ceded place after the cession ; and, on the
i 3 Cranch, 331 . * 5 Wheaton's Rep. 317.
3 1 Kent's Comm. 403; G Wheaton, 426.
84 CONSTITUTION OF
other hand, the inhabitants of those places cease to be
inhabitants of the states, and can no longer exercise any
political rights under the laws of the state.1
But there is commonly reserved by the states a right
of executing criminal process within the limits of ceded
places, and this may be exercised in perfect consistency
with the right of jurisdiction on the part of the United
States.
§ 214. The clause giving Congress power to make
all laws which shall be necessary and proper to carry
the foregoing into execution, has given rise to more
diversity of sentiment, discussion, and controversy than
any other in the Constitution. The reason is obvious;
about the direct provisions of that instrument, men of
ordinary comprehension could have but little difference
of opinion ; but as to what is necessary and proper, dif-
ferent men might form very different judgments : so it
happened; the Constitution had scarcely gone into
operation under the administration of Washington, when
a radical difference of opinion arose, in relation to the
charter of the United States Bank.
§ 215. In 1791, the Secretary of the Treasury recom-
mended the establishment of a National Bank, as neces-
sary to the proper administration of the financial con-
cerns of the nation. A bill for that purpose was intro-
duced into the House of Representatives, and warmly
opposed on constitutional grounds. Mr. Giles, Mr. Mad»
ison, and Mr. Jackson, of Georgia, were among the op-
ponents of the measure, and Mr. Ames, Mr. Boudinot,
and Mr. Gerry, among its advocates. The former de-
nied its constitutionality, on the ground that Congress
could not exercise any powers not expressly granted, —
that no power was anywhere given to charter a bank,
— and that, if such implied powers were exercised,
there would be no limits to the powers of the general
government.2 Their opponents contended that Con-
1 3 Story's Comm. 103; 8 Mas?.ch. 72. 2 Elliott's Debates, vol. 4.
THE UNITED STATES. 85
gress had power to pass all laws necessary and proper
to effect the ends proposed by the Constitution, — that, in
a confused state of the general currency, such a bank
was necessary to the power of levying and collecting
taxes, — and that it was implied in the power to borrow
money, which also includes the power to lend, and that
without the exercise of implied powers, the government
could do nothing. After much debate, the bill passed1
both Houses of Congress. The President (Washing-
ton), on receiving the bill, called a cabinet council, in
which it was again debated. The Secretary of State
(Mr. Jefferson) and the Attorney*general denied its con-
stitutionality, while the Secretaries of the Treasury and
War (Hamilton and Knox) agreed with the majorities
in Congress. The President, after deliberation, gave
it his signature, and the weight of his favorable judg-
ment.
§ 216. In 1811, the charter of the United States
Bank expired, and it was not rechartered. In the de-
bate upon the question of its constitutionality, it was
advocated by Mr. Crawford, and opposed by Messrs.
Clay and P. B. Porter, upon the same grounds as it had
formerly been advocated and opposed by Messrs. Ames
and Madison.2
§ 217- In 1816, a new bank was chartered, with a
much larger capital. The currency of the country was
then in a very depreciated and bankrupt condition.
The effect of the establishment of the bank was to re-
store a healthy action to the money market, and resus-
citate credit.
§ 218. In 1832, in anticipation of the expiration of
the charter in 1836, an application was made for its re-
newal, and the bill passed both Houses of Congress, but.
was rejected by the interposition of the Executive Veto,
by President Jackson.8
i Kent's Comm. vol. 1. p. 234. * 4 Elliott's Debates, 268, 276.
8 Journals of Congress, 1832.
86 CONSTITUTION OF
§ 219. The action of the Supreme Court upon the
subject has been direct and distinct. In the case of
McCullough vs. State of Maryland,1 that tribunal de
cided, —
1st, That Congress has power to incorporate a
Bank.
2d, That there is nothing in the Constitution which
excludes incidental or implied powers j and that if the
end be within the scope of the Constitution, all the
means which are appropriate, and are adapted to the
end, and not prohibited, may be constitutionally employ-
ed to carry it into effect.
3d, That the Bank of the United States has a consti
tutional right to establish offices of discount and deposite
within the states.
4th, That the states cannot tax the branches : they
have no right to tax any of the constitutional means
used by the government to effect constitutional ends.
5th, That the last rule does not extend to any of the
real property held by the bank in particular states, nor
to the proprietary interests of any citizen of that state
in the bank.
§ 220- In the case of Osborne vs. Bank of the United
States,2 the court decided, 6th, That the bank may sue
in the Federal Courts.
§ 221- These several decisions gave validity to the
charter, and the acts of the United States Bank : and so
far as its constitutionality could be established by ju-
dicial authority, it was so. The authorities upon this
subject stand thus: — Congress passed acts in its favor
in 1791,1816, and 1832. On the other hand, in 1811,
they rejected a bill for its recharter. Of the Executive,
Presidents Washington, Adams, Madison, and J. Q.
Adams approved of it; President Jackson alone disap-
proved. The supreme judicial tribunal of the Union
has given a solemn decision in its favor. The consti-
» 4 Wheaton's Rap. 316. * 9 Wheaton, 733.
THE UNITED STATES. 87
tutionality of a National Bank is therefore settled, as far
as it can be, by decision, precedent, and authority. The
expediency of such an institution may at any time be
questioned by the representatives of the people, and so,
as a matter of argument or theory, may its constitution-
ality, simply because all things are open to discussion
at the ultimate tribunal of public opinion ; but the exis-
tence of the bank being once supposed, nothing can
shake its validity while the decisions of the Supremo
Court remain unimpaired and the Constitution un-
violated. In reference, however, to the decision of the
Supreme Court, in the case of McCullough, against the
State of Maryland, it may well be doubted, whether the
Constitution contains any power to perform any acts
which are merely appropriate and adapted to the end, as
stated in the second proposition; for most assuredly an
act may be appropriate and adapted, — which is not both
necessary and proper. The constitutionality of the
United States Bank was maintained by Hamilton and
others, upon the ground of its necessity to the fiscal op-
erations of the government.
§ 222. Another incidental power claimed and exer-
cised by the government is to create a priority of pay-
ment in their favor, in case of the death or insolvency of
the debtor. Congress, by their acts of 1789, 1790,
1792, 1797, and 1799, gave this priority of payment
over private creditors, in cases of insolvency, and the
distribution of the estates of deceased debtors.1 In the
case of Fisher vs. Blight,2 the power thus vested in the
government by act of Congress was declared to be con-
stitutional, and coming within the legitimate scope of
means adapted to an end which is constitutional. The
government must pay the debts of the Union, and
therefore is vested with the most eligible means of
doing it.
§ 223. The principle is, that the government of the
* 1 Kent's Comm. 230. 2 2 Cranch, 358.
88 CONSTITUTION OF
United States are preferred creditors to citizens, or even
to states ; but no lien is created by this preference ; a
prior bona fide conveyance is valid. The same prin-
ciple came up and received a further exposition in sev-
eral other cases.1
§ 224. The limits of this priority are thusdefined:
1. It exists in the case of the death of the debtor
without sufficient assets.
2. In the case of bankruptcy, or legal insolvency,
manifested by some act pursuant to law.
3. In case of the voluntary assignment, by the insol-
vent, of all his property to pay his debts.
4. In case of an absent, concealed, or absconding
debtor, whose effects are attached by process of law.
This prerogative of the United States must be strictly
construed, for it is in derogation of the rights of cred-
itors.
§ 225. The United States have likewise, by impli-
cation,2 the right of suing in their own courts ; and suits
may be brought in the name of the United States, or of
any artificial person, as the Postmaster-general, for their
benefit.3
§ 226. Another exercise of implied power by the
government is found in the acquisition of Louisiana and
Florida by treaty. No provision is made in the Con-
stitution for acquiring foreign territory ; and even in the
opinion of President Jefferson, there was no constitu-
tional power to make the treaty for the acquisition of
Louisiana. The President and Congress, however, ap-
proved the act, and the nation acquiesced.4 This power
is, however, an incident of sovereignty.
§ 227- Another exercise of implied authority was the
passage of the celebrated Alien and Sedition Laws.5
The first gave the President the power to order out of
» 3 Cranch, 73; 5 Id. 289 ; 8 Cranch, 431; 2 Wheaton, 396.
2 1 Kent's Coram. 233. 3 3 Story's Coram. 155.
*3 Story's Coram. 162; 4 Elliott's Debates, 255.
6 Alien and Sedition Acts, 1798.
TIIE UNITED STATES. gQ
the country such aliens as he should deem dangerous to
the peace and safety of the country; and Ihc second
made it a public crime for persons to combine and con-
spire together, with intent to oppose any of the measures
of the United States, or to write, print, or publish, or to
disseminate any false, scandalous, and malicious writ-
ings against the government of the United States, Con-
gress, or the President. These acts soon expired by
their own limitations, and never received a judicial
sanction. They excited general odium, and have not
been revived.
§ 228. Section 9th. 1st clause. The migration or
importation of such persons as any of the states now ex-
Hsting shall think proper to admit, shall not be prohibited
by the Congress prior to the year one thousand eight
hundred and eight; but a tax or duty may be imposed
on such importation, not exceeding ten dollars for each
person.
§ 229. The persons here spoken of were slaves, and
the effect of this clause was to permit the slave-trade
till 1808. After that time arrived, Congress prohibited
it in every direction, and affixed to it the penalties of
piracy.
§ 230. TJie privilege of the writ of Habeas Corpus
shall not be suspended, unless when in cases of rebellion
or invasion the public safety may require it.
§ 231. The term Habeas Corpus is a Latin phrase,
signifying "You may have the body." The Writ of
Habeas Corpus is a judicial writ, grantable by any
Court of Record or judge thereof, and commands the
sheriff, or other officer named in it, to have the body,
and bring it before said judge, or court. The object of
the writ is, by bringing "a person, confined by any means
whatever, before a competent authority, to have his con
finement, and the cause of it, investigated; and if it be
not strictly legal, to discharge him.1 The writ is grant-
!.l Blackstone's Comm.
90 CONSTITUTION OF
able upon the application of any -person whomsoever, upon
behalf of the prisoner, and is the only mode by which a
person illegally detained may at once obtain his liberty.
The privilege of the writ of Habeas Corpus is, there-
fore, an invaluable privilege, and is a part of the essence
of liberty inserted in the Constitution, where it can nei-
ther be mistaken, nor evaded.
§ 232. Oar writ of Habeas Corpus is derived from
the English Statute of the 31st Charles II. which was
passed in consequence of frequent invasions of the per-
sonal rights and liberties of the citizen during the reign
of Charles I.
§ 233. The writ may be suspended in case of rebel-
lion or invasion; yet no suspension has ever yet taken
place. An attempt to suspend it was made during the
administration of Mr. Jefferson, on the occasion of Burr's
conspiracy, but it failed in the House of Representatives
by a large majority.1
§ 234. 3d clause. No Bill of Attainder, or Ex Post
Facto law shall be passed.
The terms Bill of Attainder and Ex Post Facto have
already been defined.2 The very definition of these
explains the meaning of the clause in the Constitution.
The former, by which judgment should be passed and
punishment inflicted upon the citizen without trial,
and the latter which makes an act criminal which was
not criminal when committed, were obviously incon-
sistent with any thing like justice to, or liberty in,
the citizen. They were, therefore, expressly pro-
hibited.
§ 235- 4th clause. No capitation or other direct tax
shall be laid, unless in proportion to the census or enu-
meration herein before directed to be taken.
This clause is nearly the same with a part of the
third clause of the 2d Section, 1st Article. The only
1 1 Senate Journal, 1807 ; Journal of the House of Representatives,
1807. 2 Definitions, 28 and 29.
THE UNITED STATES. 9[
difference is the insertion of the word capitation, — but
this, by the following words, or other direct tax, is evi-
dently included under the head of direct taxes. The
meaning of both clauses then is, that direct taxes, as
well as representation, should be in proportion to the
census in each state, — as directed to be taken in the 2d
Section.
§ 236. 5th clause. No tax or duty shall be laid on
articles exported from any state. No preference shall be
given by any regulation of commerce or revenue to the
■ports of one state over those of another; nor shall vessels
bound to or from one state, be obliged to enter, clear, or
pay duties in another.
These prohibitions explain themselves so clearly, as
to require little exposition by commentary or authority.
The first clause, preventing duties upon exported articles,
is rendered necessary by the fact, that without it, the
agriculture and commerce of some states might, at any
time, be destroyed by such duties. Some states, as
South Carolina and Alabama, derive their whole wealth
from the exportation of particular articles, and others
again, as Virginia, and North Carolina, and Maine, a
great part of it: so that by means of such duties the
government might at any time make the most odious
distinctions among the states; nor would it derive any
advantage to itself, for duties upon exports can at no
time be advantageous, for the obvious reason that it is
by such means only a nation is enabled to procure either
the money or produce of other nations.
It is also forbidden to give any preference to the ports
of one ',state over those of another, or to oblige vessels
bound from one state to enter, clear, or pay duties in
another. The reason of this is yet more clear than that
of the other. If the reverse of this were true, and such
preference was allowed, and such duties imposed on ves-
sels, it is plain the states would be in the relation of
foreign states to each other. There would be no reci-
92 CONSTITUTION OF
procity of interests between them, and the unity of the
government would be destroyed.
§ 237- 6th clause. No money shall be drawn from
the treasury, but in consequence of appropriations made by
law; and a regular statement and account of the receipt
and expenditures of all public money shall be published
from time to time.
The object of this provision was,
1st, To place the public moneys beyond the reach of
the executive: however limited the powers of the execu-
tive in other respects, it is obvious that if he has control
of the purse, he would be unlimited in the most essen-
tial attribute of power. It is, therefore, wisely provid-
ed, that the people, who alone bear the burthens of tax-
ation, should, through their representatives, alone have
the power of appropriating the resulting revenue. The
administrations of General Washington and Mr. Jeffer-
son were minutely strict in the observance of this in-
junction of the Constitution j but many instances might
be cited since their time, in which money had been ap-
plied to objects different from those to which it had been
specifically appropriated.
§ 238. 2d, The other part of this clause, requiring a
strict account of receipts and expenditures, was made
to ensure fidelity and accuracy in the disbursement of
public moneys. In the treasury department, as will be
seen hereafter, various checks and balances, in respect
to the transfer of money from the treasury, have been
devised.
§ 239. 7th clause. No title of nobility shall be granted
by the United States, and no person holding any4>ffice of
profit or trust under them shall, without the consent of
Congress, accept of any present, emolument, office, or
title of any kind whatever, from any king, prince, or for-
eign state.
§ 240. The first clause, in reference to titles of no-
bility, is the constitutional barrier against those odious
THE UNITED STATES. 93
personal distinctions which arise from, and originate
aristocracies in other countries.
The second clause, in reference to offices and titles
from foreign powers, is made as a check against the cor-
ruption of the officers and citizens of this government,
by the princes and ministers of foreign states.
§ 241. Section 10th. Clause 1st. No state shall
enter into any treaty, alliance, or confederation; grant let-
ters of marque and reprisal; coin money; emit bills of
credit; make any thing but gold and silver coin a tender
in payment of debts; pass any bill of attainder, ex post
facto law, or law impairing the obligation of contracts;
or grant any title of nobility.
§ 242. The power to enter into any treaty, alliance,
or confederation, is one of the most important attributes
of national sovereignty: when the states parted with it,
they parted with one of those characteristics which
made them independent as it respects each other. This
should be borne in mind, as it will be seen in the end
that they parted with them all, and thus divested them-
selves of all that national sovereignty, which in modern
times is the sole foundation of the strange and fanciful
theories put forth under the name of state rights.
This right to make separate treaties and alliances
was yielded up by the old articles of confederation; for
it was perfectly plain and palpable that the states could
not retain it and form one united nation: the latter was
their object, and they yielded the former.
§ 243. Letters of Marque and Reprisal are a com-
mission from the sovereign authority to a citizen or sub-
ject to make reprisals on the vessels or property of for-
eign nations who have injured the one granting them.1
The right of issuing these is prohibited to the several
states. It lies in the government of the Union. The
reason of this also is obvious. Letters of Marque2 are
merely introductions to war; and if one state had the
* Vattel, book 2d, chap. 18th, section 346. » 3 Story's Comm. 219.
94 CONSTITUTION OF
right to issue them independent of the rest, all the others
might immediately be involved in war by the instrumen-
tality of that one. It will be remarked, that this right
again is, by the definition, an attribute of national sove>
reignty, and is therefore taken from the states and vested
in the government of the nation.
§ 244. The right of coining money is also a right1 of
sovereignty, and is vested in the general government.
If the right of coinage was vested in the several states,
then there would be no uniformity in the standard of
value, and spurious coin might be circulated.
§ 245. The next prohibition is that against issuing
"Bills of Credit." What is a Bill of Credit? A Bill
of Credit2 is defined to be paper intended to circulate
through the community for its ordinary purposes, as
money, which paper is redeemable at a future day.
§ 246. Is it necessary to constitute a Bill of Credit,
that it should be made a legal tender? In the case of
Craig vs. the state of Missouri,3 the Supreme Court
decided that it was not necessary that they should be
made a legal tender in order to constitute them a Bill
of Credit. In that case the state of Missouri made
loans on certain certificates, issued by the Auditor and
Treasurer of the state, of various denominations, and
which were made receivable at the treasury in payment
of taxes and debts, and by public officers in payment of
their salaries. They bore interest, and were redeema
ble by the state. Such certificates were decided by tho
court to be Bills of Credit, and as such unconstitutional.
§ 247- The object of the prohibition was to prevent
the flood of depreciated currency which had so embar
rassed the states during and subsequent to the revolu
tionary war. It is plain that without this and the ac
companying clauses in relation to coins and currency
there could be no fixed standard of value, and commerce
» Vattel, book 1, chap. 10th, sec. 106, 107. * 3 Story's Comm. 227.
* 4 Peters' Supreme Court Reports, 410.
THE UNITED STATES. 95
and property would be constantly exposed to all the
hazards of an uncertain and fluctuating currency.
§ 248- The states are also forbidden to make any
thing but gold and silver coin a legal tender in payment
of debts. If they could have made any thing else a
good tender, there is no species of depreciated currency
which might not be paid for debts; and the difficulties,
dishonesty, and bankruptcies attendant upon such a
state of things will be easily understood. Any thing
may be borne in civil society with more ease than that
which interrupts the regular course of business, ob-
structs the due administration of justice, and prevents
the just payment of debts. The emission of Bills of
Credit, and the making any thing but coin a legal tender
by the states, would produce all these mischiefs. Du-
ring the revolution,1 and both subsequent and anterior
to it, the resort to such means had reduced public credit
to utter contempt, and ruined thousands of honest and
industrious citizens. It was the recent experience of
these evils, and the inconsistency of such powers in the
states, with the existence of a national government,
which prompted the prohibitions we have just recited.
§ 249. It is prohibited to the states, as well as to the gen-
eral government, to pass any bills of attainder or ex post
facto laws. The reason is the same. The same injustice
would be worked in either case. Such laws, at all times un-
just and inexpedient, are peculiarly so in a country where
the whole basis of the government is right and justice.
§ 250- The states cannot impair the obligation of con'
tracts. This is one of the most important provisions of
the Constitution, and has already occasioned much dis-
cussion, and been illustrated by several judicial decisions.
§ 251. The first inquiry is, what is a contract? A
contract is an agreement 2 to do or not to do a particular
thing. It must be made between two or more persons.'
1 2 Pitkin's Civil History, p. 156, 157. *2 Blackst. Coram 443.
3 Idem; 3 S lory's Conmi. 341.
96 CONSTITUTION OP
§ 252 Contracts may be either executory or exe-
cuted.1
An executory contract is one in which a party binds
himself to do or not to do something hereafter.'2 Thus,
if two men agree to exchange horses next week, or one
of them agrees to do work to-morrow, and the other to
pay money for it, these contracts are executory, because
they are to be performed at a future time.
§ 253. But, a contract executed is one in which the
act to be done is performed at once. As, if two men
agree to exchange horses now, and do it on the spot, or
one agrees to convey land, and makes and delivers the
deed on the spot, such contracts are executed, because
the act required to be done is done at once.
§ 254- A grant and a contract executed are the same
thing.3 A contract executed conveys a thing in posses-
sion. A contract executory conveys a thing in action.
§ 255. Contracts are also express or implied.3 Ex-
press contracts are those of which the terms are ex-
pressed in the agreement; implied contracts are those
which are necessarily inferred from the nature of the
agreement. An agreement that I shall pay so much for
on ox is an express contract. If a man work for me,
for my benefit, reason, justice, and the law all imply a
contract that I shall pay him for it. Both these kinds
of contracts are included in the general words of the
Constitution.
§ 256. The Supreme Court have decided, that a con-
tract and a compact are one and the same thing.4
§ 257. As the term contract in the Constitution is not
limited, it signifies both contracts executed and execu-
tory. A grant, therefore, is such a contract as cannot
be impaired by the states. Such was the decision in
Fletcher vs. Peck.5 There the state of Georgia had
granted away certain lands to Peck, who had conveyed
'Blackst. Comm,443; 3 Story's Comm. 24.1. 2 Wheaton, 197;
12 Wheaton, 256. 3 •> Blackst. Coram. 443. « 6 Cranch, 136. . * Idem.
THE UNITED STATES. 97
them to Fletcher for a valuable consideration; subse
quent to which, the state of Georgia cancelled their
grant to Peck. Fletcher sued on the covenant of war-
rantee, and the court held that the law cancelling the
grant was unconstitutional, because impairing a contract,
which had already vested in Fletcher a right to the
land,
§ 258. The next inquiry is, what is the obligation of
contracts? There are two kinds of obligations to con-
tracts,— moral and legal. The obligation contemplated
by the Constitution is a legal obligation -,1 it is one aris-
ing under civil laws; for a moral obligation cannot be
impaired or enforced by human laws. The obligation,
then, meant by the Constitution, must be one which
arises either from the enactments of a state, or can be
influenced by those enactments. If, then, a contract is,
by the laws of the place where it is made, illegal and
void, that contract has no civil obligation, and no action
can arise upon it.2 When it arises from civil laws, and
is not by these laws illegal and void, then it is such an
obligation as may be impaired, and consequently such a
one as comes within the scope of the Constitution.
§ 259. The obligation, therefore, must be a civil one,
and it must be valid according to the municipal law. It
cannot then subsist contrary to the positive law. But
may it exist independently of it? May it exist without
a remedy? Thus, if two persons make a contract of a
kind which, though by the laws of the state it is per-
fectly valid to make, yet by the laws of the state can-
not be enforced, has that contract an obligation within
the meaning of the Constitution? If it has, what is it?
The only obligation which it would seem to have is a
moral one. That undoubtedly it has. But a moral ob-
ligation, it is conceded on all hands, cannot be impaired,
and consequently is not the obligation meant.
§ 260. On this point there is great diversity of
i Ogden vs. Saunders, 12 Wheaton, 257. * 3 Story's Coram. 245.
98 CONSTITUTION OP
opinion. It is stated on high authority1 that the obliga-
tion may exist independently of positive law, and be
perfect without a remedy. The examples given, how-
ever, do not appear to confirm the principle laid down.
Thus it is said,2 that a state may have taken away "im-
prisonment for debt, and the debtor may have no prop-
erty; but still the right of the creditor remains, and he
may enforce it against the future property of the debtor.
So a debtor may die without leaving any known estate,
or without any known representative. -In such cases
we should not say that the right of the creditor was
gone, but only there was nothing on which it could
presently operate. But, suppose an administrator
should be appointed, and property in contingency should
fall in, the right might then be enforced to the extent of
the existing means." These examples are cited by the
learned commentator, to show that right may exist with-
out a remedy. With due deference to an opinion which
is at once authoritative and respected, it is thought that
he has, in these examples, manifestly confused the rem-
edy given by the law, with the object upon which that
remedy acts. What is a remedy at law*? We are told
by an authority,3 at least as high as the one above cited,
that "the law consists of several parts, one declaratory,
whereby the rights and wrongs are clearly classified
and laid down; another directory, whereby the subject
is instructed to observe these rights, and abstain from
these wrongs ; a third remedial, whereby a method is
pointed out to recover his rights, or redress his
wrongs."
§ 261. Here the remedy in law is defined to be the
method whereby a man may recover his rights, or re-
dress his wrongs. Now, in the example first cited
above, of a debt, the remedy, or the method given by law
is, first the action of debt, next the judgment upon that
action, and lastly the execution under that judgment;
» 3 Story's Comm. 247. * Idem. * 1 Blackst. Coram. 53, 54.
THE UNITED STATES. 99
now the person or property of the debtor constitutes the
object upon which that remedy acts : both may be out of
the reach of the remedy, and yet the remedy exist, and
be perfect at law. It is not perfect in its consequences,
merely because other circumstances, disconnected from
the remedy, have prevented that remedy from attaching
to the object. The remedy in the example above stated
attaches to the property ; that property, by one of the
conditions of human life, whether poverty or misfortune,
does not exist. Here then the right to a remedy is per-
fect: the remedy itself, viz. action, judgment, and execu-
tion is perfect; but the object upon which the remedy is
to attach is out of reach. The case is the same in the
second example, of an intestate dying without an es-
tate or representative. The municipal laws of almost
every civilized state either require that the Probate
Court should appoint an administrator, or give power to
the creditor to have one appointed. The administrator
being appointed, the second example is precisely the
same as the first: the administrator, as the representa-
tive of the intestate, is the debtor, and the right, the
remedy,^ and the object the same as in the other case.
The remedy here spoken of is the remedy at law. The
circumstance of the existence of property or not, on
which the remedy can attach, is one which constitutes
no part of the remedy at law j for it is obviously one which
no human law can regulate. If human intelligence
could have devised a means by which the debtor should
always have property to answer the demands of his
creditor, it would be an act of wisdom which never
would have been neglected. We may conclude, then,
that if a right can exist without a remedy to enforce it,
these are not examples of it. Are there any other
examples, either real or imaginary, by which such a
principle can be illustrated?
§ 262. The meaning of the term obligation always
implies a power to enforce it. To oblige is to compel.
100 CONSTITUTION OF
According to Justice Blackstone,1 the strict sense of ob-
ligation is such a constraint as makes it impossible for a
man to act otherwise. «
§ 263. Civil obligation, then, consists in the remedial
power of enforcement. This * seems to have been the
opinion of several eminent judges in the celebrated case
of Ogden vs. Saunders.2 In that decision the judges
gave their opinions seriatim; and in respect to the obli-
gation of contracts, as well' as several other points, were
widely different in their judgments. These questions
are, therefore, far from being settled, although the deci-
sion upon the facts of that case is doubtless permanent law.
§ 264. Justice Washington said, that "the obligation
of a contract is the law which binds the parties to per-
form their agreement.'''' While he admitted that the
common law of nations, or the moral law, might form a
part of the obligation of a contract, he insisted that this
law is to be taken in strict subordination to the munici-
pal law of the land where the contract is made, or is to
be executed.
§ 265. Justice Thompson said, "for it is the law
which creates the obligation, and whenever, therefore, the
lex loci provides for the dissolution of the contract in
any prescribed mode, the parties are presumed to have
acted subject to such contingency."
§ 266. Justice Trimble said, "it may be fairly con
eluded, that the obligation of the contract consists in tW
power and efficacy of the law, which applies to and en-
forces performance of a contract, or the payment of an
equivalent for non-performance. The obligation does
not inhere and subsist in the contract itself, proprio
vigore, but in the law applicable to the contract. This
is the sense, I think, in which the Constitution uses the
term obligation."3
§ 267. Chief Justice Marshall then said,4 "obligation
1 1 Blackst. Coram. 57. * 1 2 Wheaton, 260. » 12 Wheaton, 318
* Idem. 350.
THE UNITED SPATES.* l^)j
and remedy then are not identical. They originate at,
and are derived from, different sources ; — it would seem
to follow that law might act on the remedy without act-
ing on the obligation."
Enough of these dicta have been cited to show, that
while the majority of the court agreed in the decision
which was made, the individual judges held very differ-
ent opinions upon the main question, the obligation of
contracts.
§ 268. The next great question in respect to the im-
pairing the obligation of contracts, arose in respect to
the Insolvent Laws of the several states. The princi
pal cases upon this point are those of Sturges vs. Crown-
inshield;1 McMillan vs. JSPNiell? and the case just cited,
of Ogden vs. Saunders. The substance of these decis-
ions has already been given in another place.3
§ 269. The next decision upon this subject was in
regard to grants. In the case of Terrett vs. Taylor f
the Supreme Court decided, that a legislative grant,
competently made, vested an indefeasible and irrevoca-
ble title. A state cannot revoke what it has once grant
ed away j nor can the Legislature repeal statutes crea-
ting private corporations, and divest the rights under
them, without the consent or default of the corpo-
rators.
§ 270- One of the most important cases upon the sub-
ject is that of Dartmouth College vs. Woodward? A
charter was granted by the British crown in 1769 to
the Trustees of Dartmouth College, who acted under it,
established the college, and acquired property. The
Legislature of New-Hampshire made material altera-
tions in the charter, transferred the government of the
college to the government of the state, and made the
will of the donors subservient to their own.6 The Su-
preme Court decided that such a charter was a contract
» 4 Wheaton, 122. * Idem. 209. » Page 104. * 9 Cranch, 43.
s 4 Wheaton, 518. « 1 Kent's Comm. 390.
9*
102 CONSTITUTION OF
within the meaning of the Constitution; that the college
was a private institution, not liable to the control of the
Legislature ; and that, therefore, the act of the Legisla-
ture was an act impairing the obligation of contracts,
and void. The court said, that charters of an eleemo-
synary kind, for the benefit of religion, education, or
charity, administered by trustees, was within the pur-
view of the Constitution ; and that rights acquired under
them were vested and protected by it. No doubt such
is the clear dictate of reason; and such institutions, if
any, ought to be protected from the ruthless hands that
are too often laid upon them.
§ 271. As the prohibition in relation to ex post facto
laws is confined to retrospective criminal laws, — and as
there is a class of retrospective laws which are not
criminal, — this last class is restricted only by the pro-
hibition against the impairing the obligation of contracts,
and there is therefore a large class of retrospective laws
which it is constitutional for the states to pass. Thus,
a law abolishing imprisonment for debt, as well as to
past as to future contracts, may be constitutionally pass-
ed by the state legislatures.1 All retrospective laws
are, however, unjust and impolitic; for they destroy the
relation of circumstances under which the parties upon
whom the law acts stood at the time they made the con-
tract, or performed the act in question.
The last prohibition of this clause is, that the state
shall grant no title of nobility. The reason of this is
the same as that in regard to the national government:
it was an exclusion of every thing like nobility and ar-
istocracy.
§ 272. Clause 2d. No state shall, without the consent
of Congress, lay any imposts or duties on imports or ex-
ports, except what may be absolutely necessary for exe-
cuting its inspection laws; and the nett produce of all
duties and imposts laid by any state on imports and ex-
1 2 Peters' Supreme Court Rep. 870.
THE UNITED STATES. 103
ports, shall be for the use of the Treasury of the United
States; and all such laivs shall be subject to the revision
and control of the Congress. No state shall, without the
consent of Congress, lay any duty on tonnage, keep
troops or ships of war in time of peace, enter into any
agreement or compact with another state or with a for-
eign power, or engage in war unless actually invaded, or
in such imminent danger as will not admit of delay.
§ 273. The Constitution had already restricted Con
gross in the power to lay taxes, by requiring that direct
taxes should be in proportion to the census, and indirect
taxes uniform; that no duties should be laid on exports,
and no preference given to the commerce of one state
over another. If such' restrictions were found necessa-
ry for the general government, much more were they
for the several states, who, by local regulations, were
at all times liable to collision, and might destroy the
commerce of each other. In fact, the revenue from com-
merce is another attribute of national sovereignty, and
could safely be trusted only to that body in whom the
national sovereignty resided, and to whom was intrusted
• the national defence and the general welfare. Sufficient
power over internal commerce is left to the states, with
the consent of Congress, to execute their inspection laws,
— all the rest is taken away,
§ 274. Inspection laws are not strictly regulations of
commerce, though they may have an influence upon it.1
The object of inspection laws is to improve the quality
of articles produced in the country, and fit them for use
and exportation.
§*275. In the year 1821, the state of Maryland en-
acted, that all importers of foreign articles, commodities,
&.c, by bale, package, &c, and those persons selling
the same at wholesale by bale, package, &c, shall, be-
fore they are authorized to sell, &c, take out a license,
for which they shall pay fifty dollars, &-c. This act
* 3 Story's Comm. 472.
104 CONSTITUTION OF
was resisted as a violation of the Constitution, and the
Supreme Court decided that it was unconstitutional.
The ground of the decision was, that although an import
duty is generally secured before the goods are landed,
yet a tax is not the less an impost, though levied on
them after they were landed ; that a duty on imports is
not merely a duty on the act of importation, but is a duty
on the thing imported.* Nor does it make any difference
whether the duty was imposed by way of license upon
the occupation, or as a direct duty on the article.
§ 276. It has already been seen that a state has no
power to tax the Bank of the United States, because
they have no power to restrain the constitutional means
given to the government to execute constitutional ends.
§ 277. In the same manner it has been decided that
a state has no power to tax stocks issued for loans to the
United States.2
§ 278. Tonnage duties are taxes laid on vessels at so
much per ton. After what has been said upon the pro-
priety of imposts on imports and exports by the states,
the reason for prohibiting a duty on tonnage will be ev-
ident. If the states could have laid duties on tonnage,
they could have effected, indirectly, all the mischiefs
flowing from a power in the states to tax imports and
exports.
§ 279. The states shall not keep troops or ships of
war in time of peace : this again is founded on the same
principles as the other prohibitions relative to the exer-
cise of national sovereignty; to keep troops, make war,
&c, are attributes of national sovereignty, which could
not exist at once in both the general and state govern-
ments, without constituting them separate nations, — a
result which it was the very object of the Constitution
to prevent. The prohibition does not extend to a mu-
nicipal guard, such as those kept to guard penkentia-
1 12 Wheaton's Rep. 419.
* Wartontw. The City Council of Charleston, 2 Peters' R. 449.
THE UNITED STATES. J 05
ries and arsenals; for these are not troops, but merely
ministers of the civil law.
§ 280- The power to make treaties, alliances, and
confederations had, in another place, been taken from
the states j to this prohibition is here superadded that of
making compacts and agreements with another state or
with a foreign power, without the consent of Congress.
It may be asked what compacts and agreements are here
meant? As alliances, treaties, &.c, had before been
mentioned, this clause refers1 to "private rights of sov-
ereignty; such as questions of boundary, interests in land
situated in the territory of each other, and other inter-
nal regulations for the mutual comfort and convenience
of states bordering on each other." The compact be-
tween Virginia and Kentucky is of this class.
§ 281. No state can control the exercise of any au-
thority under the general government.2
§ 282. The. state courts cannot annul the judgments,
or determine the extent of the jurisdiction, of the courts
of the Union.3
§ 283. No state tribunal can interfere with seizures
of property made by revenue officers under the laws of
the United States.4
§ 284. No state can issue a mandamus to an officer
of the United States. The official conduct of an officer
of the government of the United States can only be
controlled by the power that created him.5
§ 285. State Laws, as, for example, statutes of limit-
ation, insolvent laws, &c, have no operation upon the
rights or contracts of the United States.6
i 3 Story's Comm. 272. * 1 Kent's Comm. 382. 3 5 Cranch, 115.
4 2 Wheaton, 1. * 6 VVheaton, 598. « 8 Wheaton,253.
106 CONSTITUTION OF
ARTICLE II.
OF THE EXECUTIVE.
§286. Section 1st. Clause 1st. Hie Executive pow-
er shall be vested in a President of the United States of
America. He shall hold his office during a term of fou?
years, and, together with the Vice President, chosen for
the same time, be elected as follows:
§ 287. The chief points laid down in this clause are,
1st, The unity of the executive; 2d, That he shall be
elected; 3d, He shall hold his office for a limited time;
and, 4th, That he be styled President.
1st. As to the unity of the executive, common sense,
as well as the agreement of the best writers,1 unite in
the opinion, that the office which is entirely ministerial,
— and in our government the executive is so, — is better
filled by one head than by several. History has in all
instances condemned the vesting executive power in the
hands of a council, and whenever the experiment has
been tried among the states, it has proved disastrous.
2d. The next principle laid down is, that the executive
shall be elective; and this is the distinguishing character-
istic of our government from that of England, France,
and other governments of Europe, where some portion
of constitutional liberty is enjoyed. It is not the power
possessed by the executive so much as it is the authority
whence, and the mode in which, it is derived, that consti-
tutes the difference between these governments and ours.
The hereditary and perpetual principles which prevail in
all the governments of Europe, for ever destroy all ac-
1 Montesquieu's Spirit of Laws, book II. chap. 6; De Lolme on
Constitution of England; I Kent's Comm. 253, 255; 3 Story's
Comm. 282. *
THE UNITED STATES. JQ7
countability on the part of the executive to the people;
hence the English maxim, "The king can do no wrong."
He is, by their constitution, placed above inquiry and
accountability. In this country, however, there is ac
countability in all the departments of the government.
The executive is elective, and his office of limited dura-
tion ; so that if he err or offend, he may soon be held
amenable at the bar of public opinion.
3d. The office is limited. — This principle, like that
of election, is necessary to give a full and perfect con-
trol of the public opinion over the executive, and make
it responsible.
4th. The style of President is very appropriate to'
the office of one whose duty it is to preside over the
administration of public affairs.
Of the Vice-President we shall speak hereafter.
§ 288. Clause 2d^ Each state shall appoint, in such a
manner as the Legislature thereof may direct, a number
of electors equal to the whole number of senators and re-
presentatives to which the state may be entitled in the Con-
gress; but no senator or representative, or person hold-
ing an office of trust or profit under the United States,
shall be appointed an elector.
§ 289. The electors are to be appointed in the man-
ner which the Legislature shall direct. In the different
States, different modes of electing the electors have
prevailed. In some, the district mode has prevailed,
as in the state of Maryland ; in others, as in Delaware,
they are elected by the Legislature itself; but gene-
rally they are elected by general ticket. The first
has been found to fritter away the power of the state,
and the second seemed to take it away from the people.
The number of electors a state is entitled to, is equal
to the whole number of senators and representatives;
thus, Ohio has 19 representatives and 2 senators; con-
sequently she is entitled to 21 electors.
No qualification is required of an elector, except he
108 CONSTITUTION OF
shall not hold an office of profit or trust under the gov-
ernment of the United States.
§ 290. The next clause in the Constitution has been
abrogated by an amendment, passed by the constitu-
tional number of States in 1801, which we shall pres-
ently recite.
That clause of the Constitution required that the
electors should vote for two persons, without designating
either of them for President or Vice-President. That
the person having the greatest number of votes, if that
be a majority of the electors, shall be President; and if
there be more than one who has such a majority, and
have also an equal number of votes, then the House of
Representatives shall immediately choose by ballot one
of them to be President; but if no one has the major-
ity, then from the Jive highest the House shall choose
the President. Each state in the House shall have
one vote. After the choice of President, the per-
son having the highest number of votes shall be Vice-
President, and if two have an equal number of votes,
the Senate shall choose between them.
§ 291. As in the mode here pointed out, there was
no distinction made between President and Vice-Presi
dent, it follows that, in party conflicts, where the whole
party support one ticket, it must necessarily happen,
that unless a vote be dropped, two persons would have
an equal number of votes, and consequently the elec-
tion devolve upon the House of Representatives. This
difficulty actually occurred at the election of 1801, at
which Jefferson and Burr received the same number of
votes. The House of Representatives, being divided by
violent party feelings, protracted the election through
thirty-six ballotings, and at last made the election only
in consequence of the danger of vacating the executive
office. The result of that canvass gave rise to an
amendment of the Constitution prescribing the present
mode of election.
THE UNITED STATES.
109
The following is the amendment: «
§ 292. 12th Amendment to the Constitution. The
electors shall meet in their respective states, and vote by
ballot for President and Vice-President, one of whom at
least shall not be an inhabitant of the same state with
themselves ; they shall name in their ballots the person
voted for as President, and in distinct ballots, the person
voted for as Vice-President ; and they shall make distinct
lists of all persons voted for as President, and of all per-
sons voted for as Vice-President, and of the number of
votes for each, which lists they shall sign and certify,
and transmit, sealed, to the seat of the government of the
United States, directed to the president of the Senate;
the president of the Senate shall, in the presence of the
Senate and the House of Representatives, open all the
certificates, and the votes shall then be counted; the
person having the greatest number of votes for Presi-
dent shall be the President, if such number be a major-
ity of the whole number of electors appointed : and if no
person have such a majority, then from the persons hav-
ing the highest numbers, not exceeding three, on the list
of those voted for as President, the House of Representa-
tives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken
by states, the representation from each state having one
vote; a quorum for this purpose shall consist of a mem-
ber or members from two-thirds of the states, and a
majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose
a President whenever the right of choice shall devolve
upon them, before jhe fourth day of March next follow-
ing, then the Vice-President shall act as President, as in
case of the death or other constitutional disability of the
President.
§ 293. The person having the greatest number of
votes as Vice-President, shall be the Vice-President,
if such a number be a majority of the whole number
10
no
CONSTITUTION OF
of electors appointed ; and if no person have a ma-
jority, then from the two highest numbers on the list
the Senate shall choose the Vice-President: a quorum
for that purpose shall consist of two-thirds of the whole
number of senators, and a majority of the whole num
ber shall be necessary to a choice.
§ 294. But no person constitutionally ineligible to
the office of President, shall be eligible to that of Vice-
President of the United States.
§ 295. By this arrangement, the competitors for the
vice-presidency were no longer candidates likewise for
the presidency; different persons are to be distinctly
voted for as candidates for each office. This is said to
diminish the dignity of the office of Vice-President,
but it seems to be absolutely necessary, to destroy the
very confusion of persons and offices which occurred
before.
The Senate are at liberty now to choose the Vice-
President, immediately after counting the votes, which
before they could not have done without a choice of
President. This is certainly an improvement.
§ 296. The mode of choosing the President does not
yet seem to be perfect. A discussion might arise, on
opening the certificates, as to the competency of the
electors, the authority of the votes, &,c, for which the
Constitution has made no provision.1
An instance of defect is put in the case in which an
equality of votes should be given for more persons than
the number from which the choice is to be made.2
§ 297. 3d clause. The Congress may determine th(
time of choosing the electors, and the day on which they
shall give their votes; which day shall be the same
throughout the United States.
The reason of this clause is obvious. Were the time
of giving the votes different in different states, there
would be the greatest possible room for intrigue among
» 3 Story's Cortim. 327. * Idem.
THE UNITED STATES. ] { [
the electors, and as their body is small, »sorae of them
might be influenced by undue means.
The power of determining the time of choosing the
electors is also given to Congress. They have not,
however, so exercised it as to appoint the same time.
In 1792, they enacted that the states should choose
their electors within 34 days of the first Wednesday in
December. The consequence is, that within that time
the elections are still made at different periods. It
would seem that, to prevent all possibility of improper
influence over the people, the elections should all have
been held on the same day. As it is, those which are
held last must be more or less influenced by those which
are held first, upon the principle of a common desire in
human nature to be on the strong side.
§ 298- 4th clause. No person, except a natural born
citizen, or a citizen of the United States at the time of
the adoption of the Constitution, shall be eligible to the
office of President; neither shall any person be eligible
to that office who shall not have attained to the age of
thirty-five years, and been fourteen years a resident
within the United States.
That the chief executive officer should be a citizen of
the United States, and a native, is unquestionable. The
age of thirty-five is young enough. The Presidents
elected have all been more than that; most of them
between sixty and seventy. Indeed, there will always
be enough of the fire of human passions infused into the.
executive by partizans, without the aid of the warmth
and ambition of youth.
§ 299. By residence in the United States is not meant
an absolute inhabitancy in the United States during the
whole period, but such an inhabitancy as constitutes a
permanent domicil. Any other construction would take
away the citizenship of any public officer resident
abroad in pursuance of his duty.
§ 300. 5th clause. In case of the removal of the
112 CONSTITUTION OF
President from office, or of his death, resignation or
inability to discharge the powers and duties of said
office, the same shall devolve on the Vice-President; and
the Congress may by law provide for the case of removal,
death, resignation, or inability, both of the President
and Vice-President, declaring what officer shall then
act as President, and such officer shall act accordingly,
until the disability be removed, or a President shall be
elected.
Congress, on this head have provided, that in case of
the removal, death, or resignation, or inability of the
President and Vice-President, the President pro. tern,
of the Senate, and in case there shall be no suoti Pres-
ident of the Senate, then the Speaker of the House of
Representatives for the time being, shall act as Pres-
ident, until the disability be removed or the vacancy
filled.
§ 301. The case of a vacancy in the offices of
President and Vice-President, by reason of non election
at the proper period, is not provided for in the Constitu-
tion. Congress have declared that in case of such an
event, there shall immediately be held a new election.
Whether this be constitutional or not is unsettled.
§ 302. 6th clause. The President shall, at stated
times, receive for his services a compensation which shall
neither be increased nor diminished during the period for
which he shall have been elected; and he shall not re-
ceive within that period any other emolument from the
United States, or any of them.
The object of this provision is plain enough; it would
not be proper to allow either the general or state govern-
ments an opportunity," by increasing or diminishing the
salary of the executive to play upon its wants or its
avarice. Congress have permanently fixed the salary
of the President at twenty-five thousand dollars, and that
of the Vice-President at five thousand dollars.
§ 303. 7th clause. Before he enter on the execution
THE UNITED STATES. 113
of his office, he shall take the following oath or affirmation:
I do solemnly swear (or affirm), that I will faithfully
execute the office of President of the United States, and
will, to the best of my ability, preserve, protect, and de-
fend the Constitution of the United States.
The solemnities of an oath seem to be proper and
necessary to all responsible offices, and peculiarly so to
that great and sacred one, the chief magistracy of a
great republic.
§ 304. Section 2d. Clause 1st. The President shall
be commander in chief of the army and navy of the
United States, and of the militia of the several states,
%vhen called into the actual service of the United States;
he may require the opinion in writing of the principal
officer in each of the executive departments, upon any sub-
ject relating to the duties of their respective offices; and
he shall have power to grant reprieves and pardons for
offences against the United States, except in cases of im-
peachment.
The power to command the army and navy, militia,
and entire military armament, flows necessarily from the
nature1 of an executive. It is made the duty of the exe-
cutive to enforce the laws, preserve order, and repel
invasions, — duties which could not be performed with-
out the command of requisite force.
§ 305. The power of the President to delegate his
authority to another officer was disputed during the last
war.2 The exception, however, seems untenable, from
the reason that, if no one but the President in person
can command them, then the President can only control
one detachment in one place, — a result evidently con-
trary to the intention of the Constitution. During the
administration of Washington, the governor of Virginia
commanded several detachments from different states
under the appointment of the President, without dispute.'
l 1 Kent's Comm. 2G4. 2 8 Mass. Rep. 548.
» 5 Marshall's Washington, 580.
10*
1 1 4 CONSTITUTION OF
The power to require opinions in writing from the heads
of departments is the mere expression of a power which
was necessarily incident to the organization of the exe-
cutive.
§ 306. The power to grant reprieves and pardons is
one which requires to be, and is exercised. It has been
supposed by some that a perfect criminal code requires
no such power; but there is no perfect criminal code.
There is no such administration of human justice, that,
after the conviction of the prisoner, it shall always bo
improper and unjust to pardon him. The only proper
depository of such a power is the executive. The Ju
diciary cannot pardon without first supposing itself
wrong in its own decisions; nor can the Legislature
without relaxing the law. He, however, whose only
duty it is to execute the laws, which others have made
and adjudged, may very consistently be allowed to exer-
cise a discretion in punishment.
§ 307. 2d clause. He shall have power ; by and with
the advice and consent of the Senate, to make treaties,
provided two-thirds of the senators present concur: and
he shall nominate, and by and with the consent and advice
of the Senate, shall appoint ambassadors, other public
ministers, and consuls, judges of the Supreme Court,
and all other officers of the United States, whose appoint-
ments are not herein otherwise provided for, and which
shall be established by law; but the Congress may, by
law, vest the appointment of such inferior officers as they
think proper, in the President alone, in the courts of law,
or in the heads of departments.
Some very important political questions have arisen
outof this provision, and agitated the minds of eminent
statesmen, as well as the councils of the country.
§ 308. In the year 1796, a treaty was made1 by Mr
Jay with Great Britain, containing some stipulations
very offensive to the House of Representatives. The
1 5 Marshall's Life of Washington, 650.
THE UNITED STATES. 1 1 5
treaty was ratified by the President and Senate, but
required a law to carry it into effect. On that occasion,
after much debate, the House of Representatives de-
clared by a vote of 62 to 37, that they had the right to
withhold their assent to the validity of a treaty, and
might, at their pleasure, withhold a law to carry it into
effect. This doctrine was denied by President Wash-
ington, and the exclusive power of the President and
Senate affirmed. In their final decision upon the treaty,
the House deemed it expedient, by a vote of 51 to 48,
to execute the treaty, but reserved to themselves the
rights they claimed.
In 1816, the same question occurred, and the House
then decided that the sole power over treaties rested
with the Senate and President.
§ 309- The predominance of opinion now is, that the
power to make treaties, &c, is vested only in the exe-
cutive and two-thirds of the Senate. The great reason
is, that the Constitution has made treaties, as well as
laws, the supreme law of the land, and as such has made
them, when ratified, a binding contract with other na-
tions.
§ 310. The next power conferred on the President,
with the advice and consent of the Senate, is the ap-
pointment of ambassadors, ministers, consuls, and other
public officers. This power is necessary to, and a part
of, the executive power; for the executive duties have
to be performed by the officers, and if they are not ap-
pointed by, and not responsible to, the executive, he can-
not be accountable for the performance of those duties.2
§ 311. As the Constitution gave power "by and with
the advice and consent of the Senate" to make appoint-
ments, but said nothing about removals, it early became
a question whether the power of removal was vested in
the President alone, or in the President and Senate
jointly. In the year 1789, the question came before
» 4 Elliott's Debates, 250, 275. * idem, 148.
1 1 j CONSTITUTION OF
Congress, on a motion to strike out of the act creating
a Secretary for Foreign affairs, a clause vesting the
President with the power of removal. After a long and
animated debate, the House decided by a vote of 34 to
20 not to strike out the clause, — thus affirming the power
of the President. In this debate, it was expressly de-
clared, that the decision was intended to be permanent,
and act as an exposition of the Constitution; as such it
lias remained, and the power of the President to remove
was never questioned till recently. In favor of the
power were Messrs. Madison, Ames, Boudinot, and Bald-
win; against it, Messrs. Sherman, Gerry, Smith, and
Jackson, of Georgia.
§ 312. A learned commentator1 has recently express-
ed surprise, that this power of removal should so long re-
main in the President's hands without question, and inti-
mates that it may be liable to abuses, and is at best of
questionable constitutionality. To this it may be an-
swered, that the decision of this question was one of
the most solemn ever made by Congress, and, therefore
entitled to high respect. As to the question itself, any
other decision than that made, may at once be reduced
to an absurdity. Thus, suppose the power is vested in
the President with the advice and consent of the Sen-
ate; the President wishes to remove an officer, and com-
municates his wish to the Senate: that body calls for
the reason; the President gives it, and the officer,
through the mouth of some senator, replies : the Presi-
dent is then reduced to the level of an accuser, or a
defendant, in respect to one of his own officers, before a
collateral branch of the government, which assumes to
decide between them, and be superior to both! And
suppose the Senate does not consent to his removal, —
the officer retains his place after he has become obnox-
ious to his superior, and it may be, obtains impunity for
his offences. Is this consistent with either the dignity
i 3 Story's Comra. 395, 396.
THE UNITED STATES. H7
or the responsibility of the executive? It is supposed
by some very judicious persons, that an officer is enti-
tled to his place during good behavior, and that he ac-
quires something like an estate in his office. But no
principle like this is recognised in the Constitution. On
the contrary, every thing there is made directly or indi-
rectly elective, and consequently nothing is placed on a
more permanent footing than public opinion. When
that changes, minor things must change with it.
§ 31 3. Such inferior offices as they may think proper,
Congress may vest in the President alone, in the courts
of law, or in the heads of departments. A learned
commentator1 supposes, in consequence of this clause,
that Congress may require the consent of the Senate to
such appointments : now this is not at all obvious ; for
the Constitution, after giving the appointment of superior
officers to the President and Senate, may give the ap-
pointment of inferiors to whom? to this same President
and Senate? No, but to the President alone, the courts
of law, or the heads of departments. After this express
designation of these persons, it is not in the competen-
cy of Congress to confer the appointment on others.
§ 314. It is decided, in reference to the power of ap-
pointments, that the Supreme Court cannot issue a man-
damus to compel the delivery of a commission to an offi-
cer after it is made out. This was so decided in a case2
in which the commission had been made out and depos-
ited in the Secretary of State's office, during the admin-
istration of Mr. Adams, and on the accession of Mr.
Jefferson he withheld it, — deeming3 that delivery was
necessary to its perfection, and being himself unwilling
to appoint the man. The case went off for want of
original jurisdiction, but the court expressed the opin-
ion, that the withholding the commission was a violation
of a legal right.
1 3 Story's Comm. 397. 2 1 Crancb, 137.
* 4 Jefferson's Correspondence.
118 CONSTITUTION OF
§ 315. 3d clause. The President shall have power to
fill up all vacancies that may happen during the recess of
the Senate, by granting commissions which shall expire at
the end of their next session.
The appointments thus made expire at the end of the
next term of the Senate by the constitutional limitation.
Suppose the President should fill a vacancy during the
recess of the Senate, and should then nominate this offi-
cer to the Senate, and the Senate should reject himj and
the President should, on the first day of the next recess,
appoint him again to fill the vacancy, may he not in this
manner perpetuate an appointment without the consent
of the Senate 1 Certainly this cannot be the intention
of the Constitution, for it would defeat the co-ordinate
power of appointment which it has vested in the Senate .
Yet such a practice1 has in some instances recently ob-
tained. Where is the remedy? Nobody is vested
with power to annul the appointment; but it can be
effectually restrained by withholding the appropriations.
Here, then, is an instance of the signal virtue of pow-
ers, effective and restraining, vested directly in the
representatives of the people.
§ 316- Does the power to fill up vacancies give the
President authority to appoint and commission ambassa-
dors during the recess of the Senate? In this manner
President Madison appointed the Commissioners to ne-
gotiate the treaty of Ghent. But this is not a vacancy,
neither does it happen, and the Senate held accordingly,
in 1822, and decided, that the President could not cre-
ate the office of minister during the recess of the Senate
without the consent of the Senate.
§ 317- Section 3d. He shall, from time to time give
the Congress information of the state of the Union, and
recommend to their consideration such measures as he
shall judge necessary and expedient; he may, on extraor-
» See the Journals of the Senate, 1830, 1831, 1832, 1833; cases of
Gwynn and Gardner.
THE UNITED STATES. 119
dinary occasions, convene both Houses, or either of them,
and in case of disagreement between them with respect to
the time of adjournment, he may adjourn them to such
time as he may think proper; he shall receive ambassadors,
and other public ministers; he shall take care that the laws
be faithfully executed; and shall commission all the offi-
cers of the United States.
§ 31 8- The President, in conformity with the first part
of this section, lays before Congress, at the first day of
their session, a Message, in which is exhibited the oper-
ations of the government during the past year, and which
is accompanied with reports from the chief officers of
government, illustrating the condition and prospects of
each department of the government. In addition to
which the President gives his opinion upon all the mea-
sures which, in his opinion, ought to be acted upon.
During the administration of Presidents Washington
and Adams, the President met Congress in person, and
delivered oral speeches, to which answers were returned,
similar to the mode still adopted by the constitutional
governments of Europe. President Jefferson, however,
abolished that custom, and ever since the message has
been sent to Congress, and no answer returned. The
President communicates to Congress all the new cir-
cumstances, views, or information which may from time
to time occur; and Congress, by calls upon the different
departments, obtain all the documentary facts which
they may desire.
§ 319. The power to call an extraordinary session of
Congress may become absolutely necessary to the pub-
lic safety. There have been three extraordinary ses-
sions called; one in 1797, by President Adams, on the
occasion of the difficulties with France ; another in 1 809,
by President Madison ; and another in 1813, also by
President Madison.
§ 320- The President has a general authority to ex-
ecute the laws; and in the exercise of his political du-
120 CONSTITUTION OF
ties, independent of the specific limitations imposed
by the law and the Constitution, he is subject to no
control, but is amenable only to his conscience and his
country.
§ 321. As incident to the power of receiving1 ambas-
sadors, the President has the power to reject and dis-
miss2 them.
§ 322. Incident to the executive functions is the
power to perform them without let or hinderance.3
§ 323. Section 4th." The President, Vice-President,
and all civil officers of the United States, shall he re-
moved front office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemea-
nors.
In what mode this impeachment is to be made and
tried, we have seen elsewhere. All officers are liable
to this impeachment for offences, although there is no
prohibition against other hinds of removal.
i Federalist, 69. 2 Case of Genet, 5 Marshall, 443.
3 3 Story's Comm. 419.
THE UNITED STATES. 121
ARTICLE III.
JUDICIARY.
§ 324. Section 1st. The Judicial power of the
United States shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to
time ordain and establish. The Judges, both of the Su-
preme and Inferior Courts, shall hold their offices during
good behavior, and shall, at stated times, receive for
their services a compensation which shall not be diminish-
ed during their continuance in office.
§ 325. The Supreme Court is instituted by the Con-
stitution, but receives its organization from Congress.1
The Constitution left the number of the judges, the
mode of its proceeding, and the character of its officers,
to be subsequently determined by the Legislature. By
successive acts,2 Congress have organized the Supreme
Court by creating a Chief Justice and six Associate
Justices, any four of whom make a quorum. It holds
one annual term at the seat of government, and though
four judges are necessary for general business, yet any
one of them may make all the necessary orders prepar-
atory to trial, and one judge attends annually at the
city of Washington for that purpose.
§ 326. The inferior courts organized by Congress
are the Circuit and the District Courts. 3The Circuit
Court is composed of one Judge of the Supreme Court
and the District Judge, except when the District Judge
is interested, when it may be h'eld by the Circuit Judge.
The number of Circuits is equal to the number of Su-
» 1 Kent's Comm. 279. * Acts of April, 1802 ; Feb. 1807.
» Kent's Comm. 282
U
122 CONSTITUTION OF
preme Judges, and are composed of two or three dis
tricts generally, but some of the western states, as In-
diana, Illinois, Missouri, &c, have no Circuit Courts.
§ 327- Another Court, inferior to the Supreme Court,
is the District Court.1 This is composed of a single
judge, who holds annually four terms, and special courts
at his discretion. The districts are composed gener-
ally of a single state, but sometimes of a part of a state,
as in New-York and Pennsylvania.
The judges hold their offices during good behavior.
Any other provision than this would place them at the
mercy of the other branches of the government. It is
plain that the members of distinct branches of the gov-
ernment must be wholly independent of the other
branches, or the whole would soon become mixed up
into one absorbing power. In the state of New-York,
sixty is the age at which a judge's office expires, and in
Connecticut, seventy. These were both, however,
provisions made to answer a temporary and party pur-
pose. They are as anomalous in jurisprudence as they
are contrary to the maxims derived from uniform expe-
rience. Youth for energy and age for judgment are
rules everywhere illustrated in human life. The ablest
judges that ever adorned England and America, Mans-
field and Marshall, gave their best decisions after the
age of seventy.
§ 328. Their compensation shall not be diminished
while in office. This is obviously necessary. Life
depends upon sustenance, and to take from the judges
their salaries would drive them from office.
§ 329. Clause 2. Section 2d. Tlie judicial power shall
extend to all cases in law and equity arising under this
Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority; to all
cases affecting ambassadors, other 2>ublic ministers, and
consids; to all cases of admiralty and maritime jtcrisdic-
i Kent's Coram. 283.
THE UNITED STATES. 123
tion; to controversies to which the United States shall
be a party; to controversies between two or more states;
between a state and citizens of another state; between
citizens of different states; between citizens of the same
state, claiming lands under grants of different states;
and between a state, or the citizens thereof and foreign
states, citizens, or subjects. In such cases the appeal is
to the state legislature.
The 11th amendment to the Constitution declares,
that The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any
foreign state.
§ 330- The jurisdiction of the Supreme Court is here
made coextensive with national objects, and independent
of other branches of the government. "There is no
liberty if the judiciary power be not separated from the
legislative and executive powers."1 The Constitution
and the laws of the United States are to be construed
and adjudged of by the Supreme Court. How could
they be adjudged by the State Courts without at once
making the States superior to the Union? Yet it must
be observed, that the state, as well as the other courts,
have the power to construe United States and all other
laws, when they come incidentally in question upon the
trial of a cause.
§ 331. All matters in relation to treaties, public min-
isters and consuls, admiralty and maritime jurisdiction,
come under the sole cognizance of the Supreme Court.
These -things belong to the laws of nations; hence,
only a national court can sit upon them. The Supreme
Court is the national court of the United States, and in
this single clause, we see at once the wide distinction
placed by the Constitution between the United States'
Courts and the State Courts. By this, taken in con-
1 Montesquieu's Esprit de Loix, book 11, chap. 6.
124 CONSTITUTION OF
nexion with the other clauses upon the jurisdiction of the
Supreme Court, and the prohibitions upon the states, the
Supreme Court is made a national, while the State
Courts are merely municipal courts.
§ 332. The next sentence is in perfect conformity to
this principle; for if the Supreme Court be national, it
is the proper arbiter between the different States, and in
relation to all controversies which involve the rights
and laws of different states. Accordingly, the Consti-
tution gives the court jurisdiction of controversies be-
tween two or more states; between a state and the citi-
zens of other states, or foreign states when the state u
not defendant; and between citizens of the same state,
claiming under grants of different states. The simple
reading of these provisions is a sufficient answer to
every theory which supposes that the states have suffi-
cient power to annul the laws of the Union. In this
article a tribunal is erected superior to all state courts,
and by the express direction of the Constitution, a com-
petent arbiter between the states themselves. "There
must be some tribunal, than which there can be no
higher," is an axiom self-evident in all governments
which purport to have system and stability; for without
it they must become mere anarchies. In the Supreme
Court, the Constitution has established that tribunal in
the United States, and it is manifest, that within its
jurisdiction, pointed out by the Constitution, it is above
all others. When we go behind this, there is nothing
left but the people, — whose work the Constitution itself
is, — but, who cannot be appealed to against their own
laws, till they have first resolved those laws to be a nul-
lity, and themselves into a state of nature. This is a
right which is left to all people of all nations, savage
and civilized, — the right of rebellion, — never to be ex-
ercised till sufferance is exhausted. Provision is made,
as we shall see hereafter, for amending the Constitution,
but this presupposes a constitution, and a government;
THE UNITED STATES. 125
this amendment, then, in the forms -prescribed by tho
Constitution, is not the exercise of that ultimate right
we have spoken of above.
§ 333. But, while it is affirmed that the Supreme
Court is the ultimate tribunal, it must be borne in mind
that the functions of a court are to say what the law is,
and not to make it. They are judges, not lawgivers.
"The judicial department has no will in any case.
Judicial power, as contradistinguished from the power
of the laws, has no existence. Courts are the mere in-
struments of the law, and can will nothing."1
§ 334. In the clause above, the phrase is read "all
cases in law or equity." The reference here is plainly
to those common law distinctions of law and equity reme-
dies, which before existed in the jurisprudence of Eng-
land and this country. So far as the remedies go,
the Constitution recognises the existence and the ope-
ration of the common law.2 And it would seem, as the
reference is direct to the remedy at common law, that
the principles upon which the remedy is to be applied
must be the same; and such is the interpretation and
mode of administering justice in such cases in the courts
of the United States. What is a case as here contem-
plated?- "A. case is a suit in law, or equity, instituted
according to the regular course of judicial proceedings;
and -when it involves any question arising under the
Constitution, laws, or treaties of the United States, it is
within the judicial power confided to the Union."3
§ 335. To understand the jurisdiction of the Su-
preme Court, we must consider the next clause of this
section, which is,
2d clause — In all cases affecting ambassadors, other
public ministers, and consuls, and those in which a state
shall be a party, the Supreme Court shall have original
J Osborn vs. Bank United Slates, 9 Wheaton's Rep. 866.
2 3 Story's Comm. 506.
s Id. 507; 1 Tucker's Blk. Comm. App. 418, 420; Madison's Vi*
gmia Resolutions, 1800.
11*
126 CONSTITUTION OP
jurisdiction. In all the other cases before mentioned,
the Supreme Court shall have appellate jurisdiction, both
as to law and fact, with such exceptions and such regu-
lations as the Congress shall make.
§ 336. Jurisdiction may be considered, 1st, With
reference to the parties; 2dly, In relation to the subject
matter; and 3dly, In respect to realm or locality.
1st. Jurisdiction in reference to the parties. The
parties who come within the jurisdiction of the Supreme
Court, are, 1. Ambassadors, public ministers, and con-
suls; 2. The United States; 3. The States; 4. Citi-
zens of different States; 5. Citizens of the same state
6. Foreign states, citizens, or subjects.
§ 337. 1. Ambassadors, public ministers, and con
suls. The grades of public ministers, and the laws
which apply to them, we shall see in another place.1
The rights, duties, powers, and privileges of public
ministers are determined, not by municipal constitutions,
but by the law of nature and nations, which is equally
obligatory upon all nations. Consuls are not strictly
ministers, hut merely commercial agents. The Constitu-
tion, however, has, in relation to the courts, placed them
upon the same level as ministers. In cases against min-
isters and consuls, the jurisdiction is supposed exclusive.2
The indictments found against persons for offering
violence to ministers, &c, and their servants, do not
come within the scope of the phrase, affecting ambas-
sadors, &c. &>c. The minister is not a party to the
record.3 Yet if he be not a party, the case may be one
which affects him in interest, and the court has decided
that in such a case it has jurisdiction.
§ 338. 2. The United States. To enforce the rights
of the United States, they must sue either in their own
courts, or those of the states. In the latter they would
at once be subject to the states, the very end which the
1 Chapter on the Practical Operation of the Government.
* 1 Kent's Comm. 44. 3 3 Story's Comm. 524.
THE UNITED STATES. 127
Constitution was formed to prevent. In their own
courts they could enforce their own rights, and have a
uniform rule of justice. The latter, therefore, was
adopted. The clause which conferred this jurisdiction
on the Supreme Court gave no power to individuals to
bring suit against the United States, nor have they or
the states any such power. It is inherent in the nature
of sovereignty not to be amenable to any private person.
The same exemption extends to every state in the
Union.2 What remedy, then, has the citizen against the
national government for injustice and injury? If it be
an oppression exercised by public functionaries upon the
body of the people, the people have, through the Con-
stitution, the power of removing them. If the oppression
be in the exercise of unconstitutional powers, the func-
tionaries who wield them are amenable for their injuri-
ous acts to the judicial tribunals of the country, at the
suit of the oppressed *
§ 339. The government is, in itself, incapable of a
personal wrong, such as assault and battery, and personal
violence.4 In respect to property, the remedy lies
against the immediate perpetrators, who cannot shelter
themselves under an agency from the government.
Such agent, like every other violator of the laws, must
refund in damages to the injured party.6
§ 340. In the case of contracts, however, the agent
is not responsible when lawfully made, and the govern
ment cannot b^e sued; hence, the only remedy is by
legislative interposition, — -an appeal to Congress. This
may be justly considered as a defect upon the part of
Congress, who have the right to provide a mode of
settling private rights. In this respect, as in every
other concerning justice between public and private
rights, the contrast between us and the government of
England is strongly against us. There the subject is
allowed to bring what is called a petition of right before
» Story's Comm. 538. 2 Ibid. 3 ibid. 539. 4 Ibid. Ibid.
128 CONSTITUTION OF
the Chancellor, who as a matter of duty, hears it, and
administers right according to the fact.1
§ 341. 3. Another class of parties under the juris-
diction of the Supreme Court are the States. The pro-
vision subjecting the states to the jurisdiction of the
Supreme Court, brings them at once within the sover-
eignty of the Union, even if all the powers before vested
m the national government had not. This jurisdiction
is frequently exercised, and although the states have
often been much irritated, yet they have uniformly sub-
mitted. As the amendment to the Constitution has
taken the states out of the jurisdiction of the Supreme
Court when the suit is against them by individuals, it
becomes important to inquire when a state is to be
deemed a party, so as to avail itself of this exemption ?
"A state is a party only when it is on the record as
such, and sues or is sued in its political capacity."2 It
is not sufficient that it has an interest in the suit, as be-
tween other persons, or that its powers and duties come
incidentally in question.3 The same principle applies
to incorporations under the state,- thus an incorporated
bank, in which the state, is stockholder, is suable, al-
though the state is exempt from the action.4 "As a
member of a corporation, a government never exercises
its sovereignty."
§ 342. It is laid down as "a rule, which admits of no
exception, that in all cases under the Constitution of the
United States, where jurisdiction depends upon the party,
it is the party named on the record."
§ 343. 4- The next class of parties are "Citizens of
different states." The first inquiry here is, who is a
citizen of a state, and how does he change his citizen-
ship? Does it depend upon his domicil, or residence,
or upon any other principle? Judge Story has answered
' 3 Story's Comm. 541. 2 idem 549.
3 3 Dall. R. 411; United States vs. Planter's Bank of Georgia,
9Wheaton, 904. f Story's Coram. 565.
THE UNITED STATES. j y)
Aiese questions in his commentaries in a very satisfac-
tory manner. " The Constitution," says the commenta-
tor, "having declared that the citizens of each state shall
be entitled to all the privileges and immunities of citi-
zens in the several states, every person, who is a citi-
zen of one state, and removes into another, with the
intention of taking up his residence and inhabitancy
there, becomes in reality a citizen of the state where he
resides ; and he then ceases to be a citizen of the state
from which he has removed his residence."1 What cir-
cumstances constitute such a change of residence? A
removal from one state into another, with an intention
of remaining, constitutes a change of residence, and con-
sequently of citizenship.2 But a native citizen of one
state never ceases to be a citizen thereof till he acquires
a new citizenship elsewhere. Residence3 in a foreign
country does not change his citizenship. Every citizen
of a state is a citizen of the United States.4 A natural-
ized citizen, by a residence in any state in the Union,
becomes a citizen of that state. So a citizen of a ter-
ritory, by a residence in a state, acquires the character
of the state where he resides.5
§ 344. But a naturalized citizen of the United States,
or a citizen of a territory, does not become a citizen en-
titled to sue in the courts of the United States, by such
residence in a territory, nor until he has acquired a resi-
dence in a particular state.*
§ 345. 5. A corporation, as such, is not a citizen of
a state in the sense of the Constitution : but if all the
members of the corporation are citizens, their character
will confer jurisdiction.7 A citizen may sue, who is
trustee, executor, or administrator for another.
§ 346. Citizens of the same state may be parries,
i 3 Story's Comm. 565. 2 id. 3 1 Kent's Comm. Sect. 4.
4 3 Story's Comm. 565. 5 id. 566; 6 Peters' Supreme C. R. 761.
6 1 Kent's Comm. 360; 1 Wheaton's R. 91. 1 United States
vs. Planter's Bank, 9 Wheaton, 410; 8 Wheaton, 668.
130 CONSTITUTION OF
when they claim under grants of different states. This
is the only case in which the Constitution gives juris-
diction directly to the Federal Courts, over cases be-
tween citizens of the same state. The reason is, that it
contemplates a case in which the laws and boundaries
of different states are brought into question, and upon
which, therefore, the state tribunals are not unbiased.
§ 347. 6. "Foreign states, citizens, and subjects"
may be parties. Who is a foreign citizen or subject? or
who is an alien? Any person who is not a citizen of
the United States is an alien. But when he is natural-
ized, he is no longer an alien; fbr this is a case provided
for by the Constitution and the laws : and it makes no dif-
ference whether he sues in his own name or as a trustee.
§ 348. A foreign corporation established in a foreign
country, all of whose members are aliens, can sue in the
same manner.
§ 349- The jurisdiction vests, however, only when
one party to a suit is a citizen.1 Alien enemies, how-
ever, cannot sue; their right is suspended until peace.
§ 350. Jurisdiction in relation to the subject matter
is Original, or Appellate.
The court has original jurisdiction in all cases con-
cerning ambassadors, public ministers, and consuls, and
those in which a state is the party; in all others it has
appellate jurisdiction, both as to law and fact, under such
regulations and exceptions as Congress shall make.
This jurisdiction cannot, by the words of the Constitu-
tion, be exercised without the intervention of Congress ;
but Congress are bound by that part of the clause which
refers to " all cases," to confer all the jurisdiction granted
by the Constitution, in some form or other, upon the
Supreme Court. By the act of September, 1789, this
was done, and the Supreme Court have exercised their
appropriate powers uninterruptedly since.
§ 351. This original jurisdiction is confined to the
i Story's Comm. 571.
THE UNITED STATES. 131
enumerated cases, and cannot be enlarged by Congress.
Congress cannot give it appellate jurisdiction, when the
Constitution has given it original, nor original where it
has appellate jurisdiction.1 The grant of original juris-
diction is exclusive, and negatives any enlargement.
§ 352. Whether the original jurisdiction vested in the
Supreme Court may not be exercised concurrently by
the inferior courts, is an undecided point.2
§ 353. Another question is, whether the court can
exercise appellate jurisdiction in those cases where it
has original jurisdiction ;3 and it is thought it can.
§ 354. What is appellate jurisdiction? "The essen-
tial criterion of appellate jurisdiction is, that it revives
and corrects the proceedings in a cause already insti-
tuted, and does not create that cause." The appellate
jurisdiction may be exercised in a variety of forms, —
indeed in any form which the Legislature may prescribe.
But the substance must exist before the form can be
applied. Where the object is to review a judicial pro-
ceeding, the mode is immaterial; and a writ of habeas
corpus', or mandamus, a writ of error, or an appeal may
be used, as the Legislature may prescribe.4
§ 355. The most usual modes of exercising appellate
jurisdiction are writs of error, appeals, or some process
of removal.6 An appeal removes the entire cause, fact,
or will, or law for a review and new trial. A writ of
Error removes nothing for re-examination but the law.
§ 356. The appellate jurisdiction of the Supreme
Court extends to the decisions of the State Courts. By
the act of September 1789, Sect. 25, it is declared that
the final judgment or decree of the state courts may be
re-examined and reversed, or affirmed in those cases in
which is drawn in question the validity or construction
» 3 Madison vs. Marbury, 1 Cranch, 137; 1 Kent's Comm. 302.
« 11 Wheaton, 467. • 3 3 Story's Comm. 576.
« Id. ; 6 Wheaton's Rep. ; 2 Peters' Supreme C. R. 449 ; Ingersoll's
Digest, 375. s 3 Dallas, 342; 1 Wheaton, 304
132 CONSTITUTION OP
m
of a treaty, and the decision is against the right, title,
or privilege set up, or claimed under it; or where is
drawn in question the validity of a statute, or an author-
ity exercised under a state, on the ground of their being
adverse to the Constitution, treaties, or laws of the
United States, and the decision is in favor of their val-
idity. Such cases may be brought upon writ of Error;
and such writ has the same effect as if directed to the
Circuit Court of the United States.
§ 357. Hence, if the highest court in a state reverse
the judgment of a subordinate court, and,, on appeal to
the Supreme Court of the United States, the judgment
of the highest court in a state be reversed, it becomes
a nullity, and a mandate issues to the inferior court for
execution.1 The record in such cases must show the
error, by showing some act of jurisdiction.
§ 358. Jurisdiction in respect to locality. Here we
may consider, 1st, Within what boundaries the author-
ity^ the United States Courts is limited; 2d, The mar-
itime and admiralty jurisdiction of the courts.
§ 359. 1. What are the territorial limits of jurisdic-
tion? The limits of jurisdiction, as it respects the Su-
preme Court, are the limits of the United States, for the
decisions of all other courts, whether territorial, district,
or state, are within the rules as to subject and parties
already laid down and are subject to revision in that tribunal ;
except that, in the Territorial Courts, no appeal lies from
their decisions without a special statutory provision. The
territories are under the sole and absolute control of
Congress.2
§ 360- The district court has cognizance of crimes
and offences, which are cognizable D*y the United States
tribunals, and which arc committed within the respec-
tive districts, or on the high seas.
§ 361. The District Courts have also admiralty and
maritime jurisdiction on the high seas, and also within
i 3 Dallas, 342; 1 Wheaton, 301. 2 1 Kent's Coram. 3G0.
THE UNITED STATES. 133
waters leading from them, and in which vessels of ten
tons burden may navigate.1
§ 362. The concurrent jurisdiction of the state and
national courts has also been a subject of some diffi-
culty.
It is settled, that no part, of the criminal jurisdiction
of the United States can be delegated to state tribunals:
and the admiralty and maritime jurisdiction is of the
same exclusive cognizance. It can only be in those
cases where, previous to the Constitution, state tribu-
nals possessed jurisdiction independent of national au-
thority, that they can now exercise a concurrent juris-
diction.2
§ 363. State courts may, in the exercise of their or-
dinary jurisdiction, incidentally take cognizance of cases
arising under the Constitution, laws, and treaties of the
United States : but the United States courts have appel-
late jurisdiction.
§ 364- Where the jurisdiction is concurrent, the sen-
tence of either court, whether of conviction or acquittal,
may he pleaded in bar of a prosecution before the other.
So also the judgment of a state court in a civil case of
concurrent jurisdiction, may be pleaded in bar of an ac-
tion for the same cause, instituted in a Circuit Court of
the United States.3
§ 365. The conclusion then is, that in judicial mat-
ters the concurrent jurisdiction of the state tribunals
depends altogether upon the pleasure of Congress, and .
may be revoked and extinguished whenever they think
proper, in every case in which the subject matter can
constitutionally be cognizable in the federal courts; and
that, without an express provision to the contrary, the
state courts will retain a concurrent jurisdiction in all
cases where they had jurisdiction originally over the
subject matter."4
» Act of Sept. 1789. 2 l Rent's Comm. 372; 1 Wheaton, 304.
»5 Wheaton, 1. < 1 Kent's Comm. 374.
12
134 CONSTITUTION OF
§ 366. Various acts of Congress give jurisdiction to
state courts and magistrates in both civil cases, and for
fines and forfeitures under the laws of the United States;
but the state courts are not bound to assume jurisdiction
in such cases.1
§ 367. It has been questioned whether the state
courts could issue a Habeas Corpus, and exercise juris-
diction in a case where the imprisonment was by an
officer of the United States, or under pretext of the au-
thority of the United States. The state courts, how-
ever, have exercised such jurisdiction, although no final
decision has been had upon the question.2
§ 368. No state court can issue an injunction upon
any judgment in a court of the United States :3 nor can
the state legislature annul the judgments, or destroy
the rights acquired under them, or determine the extent
of their jurisdiction.4 Nor can a state court, or author-
ity, prescribe the rules or forms of proceedings, nor ef-
fect of process in the courts of the United States :5 nor
issue a mandamus to an officer of the United States to
compel him to perform duties devolved upon him by the
laws of the United States.8
§ 369. On the other hand, the national courts have
no authority (in cases not within the appellate jurisdic-
tion of the United States), to issue injunctions upon
judgments in the state courts; or in any manner to in-
terfere with their jurisdiction and proceedings."7
§ 370. It is a question unsettled, whether the United
States courts have a Common Law jurisdiction? In the
case of the United States vs. Hudson & Goodwin,8 tried
for a libel on the President, the Supreme Court decided,
by a majority, that they had no Common Law jurisdic-
i 1 Kent's Comm. 375.
2 Idem ; 10 Johnson's Rep. 328; 5 Hall's Law Journal, 82; 11 Mass.
Reports, 68. 8 3 Story's Comm. 624 ; 7 Cranch, 279.
4 5 Cranch, 115. 5 10 Wheaton, 21, 22, 51.
6 6 Wheaton, 598. ' 3 Story's Commentaries, 626.
• 7 Cranch, 32.
THE UNITED STATES. 135
tion. In the case of the United States vs. Coolidge,1
the Circuit Court for Massachusetts decided it had such
jurisdiction in admiralty cases. The Supreme Court,
however, adhered to their former opinion. In conse-
quence of this division, and the opinions of different
commentators, this point is not wholly settled.2
§ 371. Another extensive subject of discussion in the
courts of the United States, is the admiralty and mari-
time jurisdiction of the District Courts.
The District Courts act as courts of Common Law,
and also as courts of Admiralty. In England a differ-
ence existed between the Instance and Prize Courts
The former is defined3 to be the ordinary admiralty
court, and the latter an extraordinary one, having juris-
diction only in time of war, and in prize cases. In the
United States, however, the Supreme Court have deter-
mined that the District Courts have all the powers of
courts of admiralty, whether as instance or prize
courts.4
§ 372. Chancellor Kent, who has made law classical
in our country, has given a brief review of the powers
of these courts, which may be stated in the following
propositions.
1. As to the jurisdiction of Prize Courts. The prize
jurisdiction extends to all captures in war made on the
high seas. Prize goods are goods taken on the high
seas by right of war, out of the hands of the enemy.4
The prize jurisdiction also extends to captures in for
eign ports and harbors, and to captures made on land
by naval forces. It extends to captures made in rivers,
ports, and harbors of the captors' own country. The
prize court extends also to all ransom bills upon cap-
tures at sea, and to money received as ransom or com-
mutation on a capitulation to naval forces.6
§ 373. If the prize be unwarrantably carried into a
i 1 Gallison, 188. 2 1 Kent's Comm. 315. 3 Idem. 331.
4 3 Dal/as, 6. s 1 Kent's Coram. 334 « Idem. 335.
125 CONSTITUTION OP
foreign port, and there delivered by the captors upon
security, the prize court does not lose its jurisdiction
over the capture and the questions incident to it. So,
if the prize be lost at sea, or actually lying within a for-
eign neutral territory, the court has jurisdiction.
Prize courts act upon the thing instead of the person^
and that notwithstanding any contract between the par-
ties.2 Prize courts have likewise exclusive jurisdiction
and discretion as to the allowance of freight, damages,
expenses, and costs in all cases of capture, and as to all
torts and per&onal injuries connected with captures.8
2. Criminal Jurisdiction of the Admiralty. The Act
of September, 1789, gives to the District Courts, exclu-
sive of the State Courts, and concurrent with the Cir-
cuit Courts, jurisdiction over crimes and offences cogni-
zable by the authority of the United States, and com-
mitted within their districts, or upon the high seas,
where only a moderate corporal punishment, or fine, or
imprisonment is to be inflicted. As this confers juris-
diction only in minor crimes, it was a question whether
the courts had any jurisdiction over cases of murder, &c.
In the case of the United States against M'Gill,4 it was
decided they had not. The same was decided in Uni-
ted States vs. Bevans.6 It is now settled, that the fed-
eral courts, as courts of admiralty, are to exercise
such criminal jurisdiction as is conferred upon them
expressly by acts of Congress, and they are not to ex
ercise any other.6 \
This limitation, however, does not extend to private
prosecutions in the District Court to recover damages
for a marine tort.
§ 374- As to the division between the jurisdiction of
the Admiralty and the courts of Common Law.
On the sea-shore, the jurisdiction of the admiralty is
I 1 Kent's Cora. 336. « Id. 337. » Idem.
« 4 Dallas, 426. 5 5 Wheaton, 76.
• 1 Kent's Commentaries, 341,
THE UNITED STATES. 13/
limited to low-water mark,1 and between that and high-
water mark, where the sea ebbs and flows, the common
law and admiralty have a divided jurisdiction.
§ 375- In the Circuit Court of the United States it
has also been decided, that the admiralty jurisdiction
extends to all maritime contracts, torts, injuries, and
offences on the high seas, and in ports and havens, as far
as the ebb and jiow of the tide?
It has been asked what cases come within the mean-
ing of admiralty, and what of common law jurisdiction?
It is now settled that all seizures under laws of import,
navigation, and trade, if made upon tide-waters nav-
igable from sea, are civil cases of admiralty jurisdic-
tion.3
§ 376. The admiralty and maritime jurisdiction of
the District Courts is exclusive. The Constitution ex-
tends the judicial authority of the United States to all
cases of admiralty jurisdiction, and the act of Congress
enacts, that the District Courts shall have exclusive ori-
ginal cognizance of all civil causes of admiralty and
maritime jurisdiction.
4. Jurisdiction of the Instance Courts.
§ 377. The Instance Courts take cognizance of
crimes committed, and things done, and contracts not
under seal, made on the bosom of the sea.4 The cause
must arise wholly upon the sea to be within the admiralty
jurisdiction. If the act be done partly on land and part-
ly on water, the Common Law has the preference.
§ 378. The admiralty has cognizance of maritime
hypothecations5 of vessels and goods in foreign ports,
for repairs done, or necessary supplies furnished.
§ 379. If the admiralty has cognizance of the prin-
cipal thing, it has also of the incident. Thus, goods
taken by pirates and sold on land, may be recovered
from the vendee by suit in admiralty.
» 1 Kent's Commentaries, 343. * 2 Gallison, 398.
3 1 Kent's Comm. 349. 4 Idem. 352. * Idem.
12*
138 CONSTITUTION OP
The proceedings in admiralty are according to the
course of the civil law, and are brief and simple.1
§ 380- "The Supreme Court shall have appellate
jurisdiction both as to law and fact." This clause was,
at first, supposed to confer the power of reviewing the
verdicts of juries on matters of fact. This was not,
however, the case. "The real object of the provision
was to retain the power of reviewing the fact as well as
the law in cases of admiralty and maritime jurisdic-
tion."2 This subject is now settled conclusively by
an amendment to the Constitution, in the following
words :
" In suits at Common Law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved; and no fact tried by jury shall
be otherwise re-examined in any court of the United
States than according to the rules of the Common Law."
This at once prohibits the re-examination of facts
already tried by jury in any other manner.
The only modes known to the Common Law to re-
examine such facts are — 1st. The granting a new trial
by the court where the issue was tried, and 2d, by a
Writ of Error, for an error in law, by some appellate
court; neither of these includes the power of re-exam-
ining facts already tried by another court.
§ 381.. The appellate jurisdiction is to be with such
exceptions and regulations as « the Congress shall pre-
scribe." But here a question is asked, whether the ju-
risdiction attaches to the Supreme Court in its own na-
ture, to be modified by Congress, or whether an act of
Congress is necessary to confer that jurisdiction ? If
Congress have the power they may repeal it, and thus
destroy the whole efficacy" of the court. It was form-
erly decided by the Supreme Court, that if Congress
provided no rule to regulate their proceedings, they
» 1 Kent's Comm. 354; 3 Story's Comm. 629.
* 3 Peters's Rep. 446. 3 3 Story's Comm. 648.
THE UNITED STA.TES. 139
could exercise no jurisdiction. That decision has, how-
ever, been since overruled, and it is asserted by the
Supreme Court, that without any limitation of powers
by an act of Congress, it must possess all the jurisdic-
tion which the Constitution assigns it. The appellate
powers of the Supreme Court are given by the Consti-
tution, and not by the judicial act.1 But they are reg-
ulated and limited by that act.
§ 382. There are certain incidental powers which are
attached to all courts without the necessity of an enact-
ment.
The functions of the judges are strictly judicial.
They cannot be called upon to advise the President, or
to give extra-judicial opinions, or to act as commission-
ers, or other like matters.
Thus also the courts have power over their own offi-
cers, and the power to protect them and their members
from being disturbed in the exercise of their functions.
All courts have the power to attach for contempts, and
by means of this they can protect themselves.
§ 383. 3d clause. The trial of all crimes, except in
cases of impeachment^ shall he by jury; and such trial
shall be held in the state where the said crimes shall have
been committed. But when not committed within any state,
the trial shall be at such place or places as the Congress
•nay by law have directed.
§ 384. In connexion with this must be taken the
amendments on the same subject, as follows :
Amendment 5th. No person shall be held to answer
for a capital, or otherwise infamous crime, unless on a
oresentment, or indictment of a grand jury,, except in
eases arising in the land or naval forces, or in the
militia when in actual service, in time of war or public
danger; nor shall any person be subject, for the same
offence, to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness
» 6 Cranch, 307, 313.
140 CONSTITUTION OF
against himself; nor be deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use without just compensa-
tion.
§ 385- Amendment 6th. In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district
wherein the crime shall have been committed;
§ 386. The right to a trial by jury is of very ancient
date. It was firmly established, however, in the
Magna Charta, granted at Runneymede.1 In that
instrument it is declared, that no freeman shall be in-
jured in person or property except by the judgment of
his peers, or the law of the land. From that time to
[his it has descended unimpaired through the govern-
ments of England and this country. It is esteemed,
and correctly, the most precious right of freemen; for it
enables them to appeal from the arbitrary judgments of
either governments or individuals, to the disinterested
verdicts of their equals. The term peers means equals,
and a judgment by his peers is one by his equals. The
verdict, then, is given by those who are not only neigh-
bors, but taken from the same rank and circumstances
of life, and influenced by all the sentiments of justice or
humanity which may be supposed to actuate persons
placed in similar situations, and liable to the same con
tingencics.
§ 387. The trial of all crimes must also be in the
state where it is committed. This is to avoid the diffi-
culty, expense, and oppression which might happen from
being carried into other states, and before foreign tribu-
nals.2
Before a person can be tried for a crime, he must first
be charged by a Grand Jury with the offence. This
charge is in the form of a presentment, or indictment. A
Grand Jury is a number of men, not less than twelve,
> 3 Blackstone, 350. 2 3 Story's Comra. 655.
THE UNITED STATES. J4J
nor more than twenty-three, of whom twelve must agree
in the charge, selected in the manner of other juries,
from the body of the people within the county where
they are summoned.1 They are sworn to make diligent
inquiry of all offences committed against the authority
of the government, and the peace of the state within the
body of their county. In the United States Courts they
are sworn to inquire and present all offences against the
national government, and within its jurisdiction. When
the grand jury are assembled, the proper officer, com-
monly the District Attorney for the state, lays before
them all the offences of which he has any knowledge,
and the evidence by which the charges against the pris-
oners are supported. They examine this carefully, and,
if they find the testimony probable, and sufficient to in-
duce a rational belief in the charges, they find what is
called a bill, or an indictment, and indorse on it A true
bill. This bill or indictment is a formal charge of the
offence against the prisoner, usually drawn up by the
attorney for the state. If the grand jury do not find
the bill true, they indorse on it "Not a true bill," and
the prisoner is discharged; but a new bill may be found
by a new jury.2 The indictment must charge person,
time, place, and nature of the offence with clearness and
certainty; otherwise it will be void for uncertainty.
§ 388. It is also provided, that no person shall be
twice put in jeopardy of life or limb for the" same
offence. The meaning is, that no person shall be twice
tried for the same offence: it is also added, that this
can only be pleaded when there has been an actual ver-
dict and judgment, and not when the jury have been
dismissed for want of agreement, or a new trial
granted.3
§ 389. No person can be compelled to be a witness
against himself, or be deprived of life, liberty, or proper-
ty, without process of law. This is merely an affirra-
i 4 Blackstone, 302. * 3 Story's Comm. 658. * Id. 659.
142 CONSTITUTION OF
ance of the Common Law, as is also the former pro-
vision. In fact nearly the whole of these amendments
in relation to trial by juries, were common law privileges,
but inserted, no doubt, for more absolute certainty, and
that no doubt should ever be permitted to enter the
minds, as to this subject, of either lawgivers or judicial
expositors.
§ 390- One of these re-enactments of the Common
Law is, that no private property shall be taken for public
use without just compensation: yet plain justice as this is,
it is frequently violated in this country by indirect
means, and shows how difficult it is to preserve private
rights when the people at large are interested against
them: thus, private land is frequently taken for public
works, streets, highways, canals, &c.j the owners are
remunerated by an appraised valuation, not of what the
property is worth in itself, but with the additional cir
cumstance of its increased value, by an improvement
which the owner never desired, and in his judgment,
is injurious to his interests. The plain rule of jus-
tice is, to pay the actual value, without reference
either to the increase or diminution of value in the resi
due.
§ 391. The trial by jury is public, in the presence of
both the prisoner and the witnesses. The accused is en-
titled to compulsory process to obtain witnesses, and is
also entitled to have counsel. This provision was in-
serted because, by the ancient common law the prisoner
had not that privilege, but acquired it by a statute of
William and Mary.1 Indeed, the criminal jurisprudence
of England, previous to that time, was, except the trial
by jury, conducted with the greatest disregard of justice
Neither had the prisoner the benefit of counsel, though
as the maxim ran, the judge is his counsel, and bound
to see him have equal advantages with the accuser.
This discreditable injikstice on the part of the Common
» 3 Story's Conim. 663.
THE UNITED STATES.
143
Law is, however, entirely done away by these pro-
visions of the Constitution.
§ 392. Section 3d. 1st clause. Treason against the
United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid
and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt
act, or on confession in open court.
2d clause. The Congress shall have power to declare
the punishment of treason; but no attainder of treason
shall work corruption of blood, or forfeiture, except
during the life of the person attainted.
Treason is some act whose object is the overthrow of
the government: hence it is the highest crime against
society, and universally regarded with odium and re-
sentment. The definition of what is treason, and what
is necessary to conviction, is of vast importance to the
peace of society, and the liberty of the citizen. Con*
structive or implied treason, from suspicious circum-
stances, is dangerous wherever it exists. In the
reign of Edward III. in England, a statute was passed
declaring and defining treason and its different branch-
es.1 This was confirmed by the statute of Mary I. Our
Constitution has used the very words of this statute, and
thus adopted its definition, with the interpretation which
it has received during several centuries. The war must
be actually levied to constitute treason. A conspiracy
to levy war is not treason.2
§ 393. The punishment of treason in our country is
simply death by hanging; at the Common Law it was
accompanied by many barbarities, which would not
now be tolerated.
§ 394. By corruption of blood is meant the destruc-
tion of all inheritable qualities; — so that no one can
claim any thing from a person attainted, or through him.
1 Hawkins, p. 6, book I. chap. 1-7. » 4 Cranch, 126.
144 CONSTITUTION OF
A. son could not claim from a grandfather, deriving title
through* a father that was attainted.1
§ 395. A state cannot take cognizance of or punish
the crime of treason2 against the United States. As
treason is a crime whose object is to overthrow the gov-
ernment, and the government of the state is guarantied
by that of the United States, it follows, there can be no
treason against a state, which is not also treason against
the United States, and consequently, the crime of trea-
son cannot be punished by the states.
ARTICLE IV.
MISCELLANEOUS.
§ 396. Section 1st. Full faith and credit shall be giv-
en in each state to the public acts, records, and judicial
proceedings of every other state. And the Congress may,
by general laws, 'prescribe the manner in which such acts,
records, and proceedings shall be proved, and the effect
thereof
§ 397- The laws and acts of foreign nations are not
judicially taken notice of by other nations, but must be
proved, like other facts, when they come under exami-
nation. The mode of proof varies in different countries.
As to the effect to be given foreign judgments, all civil-
ized nations are agreed they shall have some effect, but
what, they are not agreed upon. In England and the
United States, foreign judgments are what is called
prima facie evidence of what they decide. This means
that they shall be taken as true till the contrary is
proved. A domestic judgment, however, is true conclu-
sively, and cannot be contradicted.
» Story's Comm. 171. * Idem. 173.
THE UNITED STATES. J 45
§ 398. The full faith and credit mentioned in the
Constitution, was inserted to place the judgments of the
different states upon a different footing from those of
foreign nations. The latter were already prima facie
evidence; the former then must be conclusive. They
have absolute verity, so that they cannot be denied any
more than in the state where they originated.1 If a
judgment is conclusive in the state where it is pro-
nounced, it is conclusive everywhere; if re-examinable
there, it is so elsewhere. It is placed upon the same
ground as a domestic judgment.
§ 399. Section 2d. 1st clause. The citizens of each
state shall be entitled to all privileges and immunities of
citizens in the states.
2d clause. A person charged in any state with trea-
son, felony, or other crime, who shall fee from justice,
and be found in another state, shall, on demand of the
executive authority of the state from which he fed, be
delivered up to be removed to the state having jurisdic-
tion of the crime.
3d clause. No person held to service or labor in one
state, under the laws thereof, escaping into another, shall,
in consequence of any law or regulation therein, be dis-
charged from such service or labor, but shall be de-
livered on claim of the party to whom such service or
labor may be due.
§ 400. The object of the first part of the clause is
plain enough. If each citizen was not a citizen of the
United States in other states, then the states would be
completelyybmgTi to each other, and their citizens aliens
in each other. This clause makes each citizen of a state
a citizen of the United States, and as such confers on him
rights and privileges throughout the whole Union.
§ 401. The subject of delivering up fugitives from
justice is one which among different nations has in-
volved some doubts. In the United States, however, it
i 3 Story's Comm. 180; 1 Peters' C. R. 74, 80.
13
146
CONSTITUTION OF
is firmly fixed by the above provision, which requires
them always to be given up to those who have a right
to require it.
§ 402. The next clause, relative to persons held to
service or labor, plainly refers to the slaves of the
southern states who may take refuge in the non-slave-
holding states. The delivery1 in the case of fugitives
and slaves is to be made, not after a full trial, which
would manifestly defeat the end in view ; but after a
summary investigation before a magistrate, in which it
shall appear probable that the circumstances charged
are true. By an act of Congress, 1793, it is provided
that such proof may be made before any magistrate, by
the principal or his attorney, and may be either by affi-
davit or oral testimony to his satisfaction. The magis-
trate is then authorized to give a certificate of the facts
to the party or his agent, which certificate is suificient
warrant of removal. Heavy penalties are laid on those
who hinder or resist such proceedings, or harbor any
of the fugitives or slaves.
§ 403. Section 3d. 1st clause. New states may be
admitted by the Congress into this Union; but no new
state shall be formed or erected within the jurisdiction of
any other state; nor any state be formed by the junction
of two or more states, or parts of states, without the con-
sent of the legislatures of the states concerned, as well
as of the Congress.
2nd clause. Hie Congress shall have power to dis-
pose of and make all needful rules and regulations re-
specting the territory, and other property belonging to the
United States; and nothing in this Constitution shall be
so construed as to prejudice any claims of the United
States, or of any partictdar state.
§ 404. These two clauses are the foundations upon
which Congress erect and administer the territorial
governments, and subsequently admit them into the
i 3 Story's Comm. 677.
THE UNITED STATES. 147
Union. Under the old confederation, no s ich provision
existed; and so little anticipation was had of the growth
and prosperity of those wild regions whose population
and territory have since nearly doubled the states, and
more than quadrupled their strength, that no provision
existed on the subject of forming or admitting new states.
Since the adoption of the Constitution, however, eleven
new states have been added to the Union, and three
territories will soon still farther increase that number.
The power given by the Constitution to do this is one
of the new principles introduced into our system, and is
perhaps the most anomalous and most influential upon
its future destiny of any.1 The principle is simply this,
that a colony settled upon an adjacent territory, and
within the jurisdiction of the United States, whether it
be composed of citizens of the Union or emigrants from
foreign nations, Europeans, or Asiatics, shall, on enu-
merating a specific population, be admitted to equal
rights, privileges, and powers with the original states.
This principle is likewise unlimited in respect to the
number, distance, or settlement of the colonies. The
consequence is, that the original states may ultimately,
as they soon must, be left in a minority as to power in
that government which they formed, and of which they
were the sole possessors. They make the whole world
partners with themselves, in an inheritance of liberty
and power and wealth. The grant thus made to the
world of an asylum for all mankind, is noble and benevo-
lent, and the more so, as it seems to have had no former
example among nations. It may be said, that the states
thus added are not foreign: it is true they were not
conquered, but they are just as subversive of the powers
1 Note. — All the nations of antiquity held immense provinces, which
constituted a part of the state, for purposes of revenue and armies, — but
were never admitted upon terms of equality, and whose inhabitants
were never citizens. The idea of constituting a government, to be
increased as to the source of law — by its own colonisation, or by
recruits from abroad, is wholly new.
148 CONSTITUTION OI
of the olc states as if they had been taken from foreign
countries. In the case of Louisiana, which was pur-
chased, it was the accession of foreign territory ; and at
the time the territory of Orleans was erected into a
state, its inhabitants were almost wholly Spanish and
French. In the same manner the territory of Florida
is an accession from a foreign country; and so also,
should the government hereafter acquire any district or
territory whatever, according to the existing laws, it
would first become an organized territory of the United
States, and then a state. No such policy as this was
ever adopted by any other country, and it succeeds and
could succeed only by that nice system of balances and
toleration, by which one sect, or party, or state, is
constantly checked by others, and the elements of
discord and opposition kept from any general union
against the laws and the government. It must be
observed, however, as what may hereafter be of im-
portance, that the term used in the Constitution, as
to the admission of states, is may, and not shall.
Hence, it is not imperative in the government of the
United States to admit new states whenever they may
demand it. The Constitution has, in the next clause,
provided for the government of Territories, and the
Congress may undoubtedly keep all, not provided for
by the ordinance of 1787, as territories forever.
§ 405. In respect to the formation of states and the
territorial governments, the power was exercised by
Congress before the Constitution was formed, and with-
out any article in the confederation to authorize it. The
whole of what was called the" North-western Territory,
ceded by Virginia to the United States, and out of
which has been carved the states of Ohio, Indiana
Illinois, and the territory of Michigan, — was placeo
under a territorial government, and governed by the
ordinance of 1787-1 That ordinance was, in many re-
» Act of Congress, 1787.
THE UNITED STATES. ]49
spects, wisely drawn, and has had great, and not less
certain, because unseen, influence, upon the prosperity
and happiness of that immense and now populous dis-
trict.1
§ 406. The articles of compact solemnly tendered to
the people of the states about to be formed, and thus far
accepted by them, — contained some remarkable pro-
visions. Among these articles are,
1st, An agreement that said territory, and the states
which may be formed therein, shall forever remain a
part of this confederacy, subject to the articles of con-
federation, and to such alterations as may be made therein.
This part of the compact, as will be seen hereafter, has
an important bearing upon the recently agitated ques-
tion of secession.
2d, And it is further provided, that there shall be nei-
ther slavery nor involuntary servitude in the said territory.
3d, And farther, that whenever any of the said ter-
ritories shall contain sixty thousand free inhabitants, it
shall be admitted into the Union upon an equal footing
with the original states.2
§ 407. The power of Congress over the public terri-
tory is exclusive and universal, except so far as they are
restrained by stipulations in the cessions, or by the ordi-
nance of 1787-3 This is not the case, however, with
merely national property, such as forts and arsenals,
where the states have not ceded the jurisdiction: in
such cases, the jurisdiction of the state continues; sub-
ject, however, to the just exercise of the proper powers
of the national government.
1 Note. — The North-west Territory, ceded by Virginia to the United
States, and included within the ordinances of 1767, contained the states
of Ohio, Indiana, Illinois, and the Territory of Michigan. They now
contain more than 4,500,000 inhabitants, and have derived the whole
vigor and spirit of their institutions, and the direction of their policy
and views, from the ordinance above cited. How important and lasting
are the acts of early legislators !
2 The entire ordinance will be found, page 228, at the end of the
book. 3 Story's Comm., 198.
150 CONSTITUTION OF
§ 408. In the year 1820, upon the admission of the
state of Missouri into the Union, a question was raised,
whether a clause restricting the admission of slaves into
the state was constitutional. That question was not
directly decided, but it was indirectly by the act passed,1
which declared that, in all the territory north of lat. 36
deg. 30 min., not included within the limits of Missouri,
slavery and involuntary servitude should for ever be
prohibited.
§ 409. The question may, however, be considered as
settled long before by the enactment of the ordinance
of 1787, under the confederation, and the subsequent
adoption and continuance of its provisions under the
Constitution.
§ 410. An objection involving the same principle
was made to the compact between Virginia and Ken-
tucky, but at once overruled by the Supreme Court.2
Section 4th. The United States shall guaranty to
every state in this Union a Republican form of govern-
ment, and shall protect each of them against invasion,
and, on the application of the Legislature, or of the Exe-
cutive (when the Legislature cannot be convened), against
domestic violence.
This clause was unanimously adopted by the con-
vention, and seems essential to the well-being of the
republic, because the whole republic could not exist, if
a different form of government was allowed to exist in
either one of the states. This clause is intended to
prevent such a change either by a powerful faction, a
rebellion, or any other cause.
The phrase " guaranty a Republican form of govern-
ment"-^-" protect" — against "invasion" — or "domestic
violence ;" — covers, and was manifestly meant to cover
every condition of Treason, — Rebellion, — Insurrection,
— Servile Wars, — or Tumult, which could possibly be
i Act of Congress, March 6, 1820.
2 Green vs. Biddle, 8 Wheaton, 1, 87, 88.
THE UNITED STATES. 151
imagined against the peace or government of a State.
It covered every thing not covered by municipal legisla-
tion. The Constitution has already taken from the states
the power to keep troops, and ships of war, and conse-
quently, efficiently to suppress insurrections. Hence, it
was necessary for the United States to assume their
defence.
ARTICLE V.
§ 411. Tfie Congress, whenever two-thirds of both
Houses shall deem it necessary, shall propose amend-
ments to this Constitution, or, on the application of the
legislatures of two-thirds of the several states, shall call
a convention for proposing amendments, which, in either
case, shall be valid to all intents and purposes, as part
of this Constitution, when ratified by the legislatures of
three-fourths of the several states, or by conventions in
three-fourths thereof, as the one or the other mode of rati-
fication may be proposed by the Congress; provided that
no amendment, which may be made prior to the year one
thousand eight hundred and eight, shall in any manner
affect the first and fourth clauses in the ninth section of
the first article; and that no state, without its consent,
shall be deprived of its equal suffrage in the Senate.
§ 412. This article provides that amendments may
be made to the Constitution, and also points out the
manner of making them. From this two things follow :
1st. That amendments made in accordance with the
provisions of this article, become of the same binding
authority as if they had formed a part of the original
instrument.
2d. That no amendment can be made except in the
way here pointed out.
The amendments do not require the assent of the Presi-
152 CONSTITUTION OF
dent; — for, when proposed by two-thirds of Congr ess, and
ratified by three-fourths of the States, — they are valid
§ 413. There are three limitations to the power of
making amendments:
1st. That the prohibition of Congress to pas's any law
prior to the year eighteen hundred and eight, forbidding
the introduction of slaves, should not be" removed.
2d. That the mode of levying a capitation or direct
tax should not be changed so long as slave property
could be increased by importation.
3d. That no state should be deprived, without its
consent, of its equal representation in the Senate.
The first restriction was adopted as a matter of com-
promise, and to ensure, for a limited time, the continu-
ance of a profitable traffic. The second necessarily
grew out of the first; for it would obviously have been
unjust to change the mode of laying taxes while the
property exempted from taxation could have been in-
creased at pleasure, by importation. The third restric-
tion was intended to ensure to the lesser states an ef-
fective safeguard against encroachments from the larger;
and being placed in the Constitution itself, it cannot bo
broken down.
ARTICLE VI.
§ 414. 1st clause. All debts contracted, and engage-
ments entered into, before the adoption of this Constilu-
tion, shall be as valid against the United States, under
this Constitution, as under the Cor federation.
The obligations between a nation and private indi-
viduals remain the same, whatever changes the form of
government may undergo.2
§ 415. 2d clause. This Constitution, and the laws of
l 3 Dallas, 378. 2 Federalist, 43.
THE UNITED STATES. 153
the United States, which shall be made in pursuance
thereof, and all treaties, made, or which shall be made
under the authority of the United States, shall be the su-
preme law of the land; and the judges in every state
shall be bound thereby; any thing in the Constitution, or
laws of any state to the contrary notwithstanding.
§ 416. The necessity of this provision is obvious
enough. If the Constitution were not the supreme law
of the land it would not be a Constitution; it would be
a nullity: its supremacy makes a part of the instrument
itself; yet it was necessary to declare it, in order that
all might understand it, and no room be left for contro-
versy. Treaties are supreme laws till repealed by the
legislature of the nation: the legislature has such
power, though war may be the consequence of its exer-
cise.1 Treaties are compacts with foreign nations, and
must be observed, or the national faith is violated.
§ 417. The laws of the United States, if made in
pursuance of the Constitution, are as valid as the Con-
stitution, and of course also the supreme law. To
these provisions it is added, "any thing in the Constitu-
tion, or laws of any state to the contrary notwithstand-
ing." This clause gave no additional force to the fore-
going provisions, but made them clearer to those who
administer the laws. Another thing clearly appears
from the whole clause, that the Constitution makes the
national government supreme over the state constitution
and laws in all cases in which they may come in con-
flict. As the Constitution is thus supreme, every court
has the power to declare unconstitutional laws void,
when properly before them.2
§418. 3d clause. The senators and representatives
before mentioned, and the members of the several state
legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be
bound by an oath, or affirmation, to support this Consti-
»2 Cranch, 1 ; 3 Story's Coram. 695. 2 1 Kent's Comm. 420.
154 CONSTITUTION OF
tution; but no religious test shall ever be required as a
qualification to any office or public trust under the United
States.
§ 419. This oath is required in all civilized nations
from the officers of government; it is the most solemn
obligation men can be placed under, and it is right to
require it of them in a class of duties as important as
any that can be performed in a social state. It is to be
remarked, that this oath is required of all state, as well
as national officers ; for the agency of state officers is re-
quired to carry on the national government, and they
are accordingly required to give their obligations to
perform it.
§ 420. In June, 1789, Congress passed an act1 pre-
scribing the time and manner of taking the oath or af-
firmation, as well by the officers of the several states
as of the United States. Some doubts were entertain-
ed of its constitutionality, but it was approved, and no
doubt is now had upon it.2
§ 421. The clause which enacts that no religious
test shall ever be required for any office of trust or
profit, is one of the most peculiar, as well as valuable
parts of the Constitution. This is believed to be the
only government in the world which permitted perfect
toleration, and the experience of half a century has
proved that it offers no hindrance to any, while it af-
fords protection to all religious sects. While this exists,
there can be no union of Church and State, — a union
fatal to both, and dasastrous to the welfare of the peo-
ple. Yet Christianity flourishes and extends in the
United States with the growth of the people, and tho
very emulation of the different sects contributes to the
prosperity of the whole.
* Act 1st June, 1789.
* 4 Elliott's Debates, 139; 4 Wheaton's Rep. 415.
THE UNITED STATES. 155
ARTICLE VII.
§ 422- rITie ratification of the conventions of nine
states shall be sufficient for the establishment of this
Constitution between the states so ratifying the same.
At the formation of the Constitution, there were thir-
teen states; nine of these ratified it immediately, three
after the lapse of a few months, and the state of Rhode
Island not till more than a year afterward. The instru-
ment was, however, perfect by the ratification of nine, and
if the others had not acceded, they would have stood in
the relation to them of foreign nations. Since that period,
eleven others have joined the union, and the whole form
one great nation under a common government.
AMENDMENTS.
§ 423. Upon the adoption of the Constitution, strong
objections were made to it on account of some supposed
deficiencies. Among others, the want of a Bill of
Rights was strongly urged, to which it was justly re-
plied, that the Constitution itself was a bill of rights.
The people, in their conventions, however, finally
thought best to accede to the Constitution, and urge
upon Congress the proposal of several amendments.
Accordingly, the amendments we have already mention-
ed, those following, and some that were not adopted,
were recommended by many of the states to Congress,
and by Congress to the people. ■»
AMENDMENT I.
§ 424- Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or of the right of the people peaceably to assemble,
and to petition the government for a redress of grievances ,
156 CONSTITUTION OF
The first clause was undoubtedly meant to prohibit
Congress from interfering in any manner between dif-
ferent sects of Christianity, and not to encourage any
other religion. For nearly all the old states had laws
for the encouragement of religion; at the same time,
Congress has no power to do the slightest positive act
to sustain or prohibit any religion whatever. It is a
subject upon which they are forbidden to legislate. In
this respect the United States Constitution is wholly un-
like any other ever formed. It derives no aid from its
connexion with religion, but leaves that to be settled by
conscience and its God.
§ 425. The next clause is, that Congress shall make
no law abridging the freedom of speech or of the press.
What is the freedom of speech and of the press ? It
is the right to speak and publish every thing in relation
to every subject, which is not in derogation of private
rights. No one has a right to injure his neighbor: this
is the first law of society, and everywhere preserved in
the civil state; of consequence, no one has a right to speak
or publish what will injure another; hence the law of
slander and of libel. Within these limits it is not per-
ceived that there is any restraint upon the liberty either
of speech or of the press.
§ 426. The next clause is, the people shall have the
right peaceably to assemble and petition for a redress
of grievances. This seems to have been altogether a
work of supererogation; for the right of the people to
assemble, either to petition, or for any other purpose,
arises necessarily from the form of government.
AMENDMENT II.
§ 427. A well regulated militia being necessary to
the security of a free state, the right of the people to
keep and bear arms shall not be infringed.
The term militia is a Latin word, and signifies the
being a soldier. In our country it is applied only to that
THE UNITED STATES. 157
species of soldiery which is composed wholly of en-
rolled citizens, held ready for service, but not actually
under arms. It is scarcely necessary to say, that the right
of the people thus to bear arms is the foundation of their
liberties; for, without it, they would be without any
power of resistance against the existing government.
AMENDMENT III.
§ 428. No soldier shall, in time of peace, be quar-
tered in any house without the consent of the owner, nor
in time of war, but in a manner to be 'prescribed by laic.
It was an easy mode of oppression, with arbitrary
princes, to quarter soldiers upon the people, so that they
ate out their substance and ill treated their families. It
was to prevent the possibility of such scenes in this coun-
try that this provision was inserted in the Constitution.
AMENDMENT IV.
§ 429. The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated; and no war-
rant shall issue but upon probable cause, supported by
oath, or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Special warrants, such as here described, are the only
warrants upon which an arrest can be made according
to the law of England.1 This provision, therefore, was
in affirmance of the Common Law, and introduced into
the Constitution for more abundant caution.
§ 430- Amendments 5th, 6th, and 7th, in relation to
the trial by jury, and the mode of indictment, we have
already considered in connexion with another part of
the Constitution.
AMENDMENT VIII.
§ 431. Excessive bail shall not be required,nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
i 3 Burrow's Rep. 1743; 4 Blackstone's Comm. 291, 292.
14
158 CONSTITUTION OF
Excessive bail, and cruel punishments, weie another
class of means used by arbitrary governments to op-
press the people; hence the insertion of this amend-
ment.
It has been held that this clause applies only to pun-
ishments inflicted by the national government, and not
to those inflicted by the states.1
AMENDMENT IX.
§ 432- The enumeration in the Constitution of certain
rights, shall not be construed to deny or disparage others
retained by the people. «
This was merely meant to prevent the application to
the Constitution of a maxim, that the affirmation of cer-
tain things, in some cases, implies a denial of others.
AMENDMENT X.
§ 433. The powers not delegated to the United States
by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people.
This provision follows of course, without express
insertion, from the fact that the Constitution is an in-
strument of enumerated powers, ana those not expressly
given in it, or necessarily flowing from them, are re-
tained by the original source of power, or invested in
collateral and inferior governments. Now, what is this
source of power? The people. It must be recollected,
that both national and state governments are formed
by, and derive their authority from, the people,- hence,
whatever powers they have not invested in the national
government, must either be granted to the state govern-
ments, or retained by themselves ; therefore, the words
of the provision, "reserved to the states respectively, or
to the people."
§434. Amendment 11th, in relation to the judicial
power, and 12th, in relation to the Presidential election,
have been already considered.
» 3 Cowen's New-York Rep. 686; 3 Story's Cotnin. 751.
THE KATIFHJATION OP 159
CHAPTER III.
THE RATIFICATION OF THE CONSTITUTION.
§ 435- We have now seen what the Constitution is,
and in connexion with that, what constructions have been
put upon its various clauses, and what decisions have
been had under it by the judicial authority. It is im-
portant that we should now look at the mode in which
it was ratified, and what opinions were declared by the
ratifying power, as to what were the rights vested in
the national government.
§ 436. When the Convention had formed the Consti-
tution, they by resolution1 directed it to be " laid before
the United States in Congress assembled," and declared
their opinion that it should afterward "be submitted to
a convention of delegates, chosen in each state by the
people thereof, under a recommendation of its legisla-
ture, for their assent and ratification;" and that each
convention assenting thereto, and ratifying it, should
notify Congress thereof.
§ 437. Accordingly, Congress having received the
report of the convention, — 2 Resolved, that the report,
resolutions, and letter accompanying them, be trans
mitted to the several legislatures, to be by them sub-
mitted to a convention of delegates chosen in each state
by the people thereof in conformity to the resolve of
the convention, &c. &c.
§ 438. Under this resolution of Congress, the states
called conventions of the people, and the Constitution
being submitted to them, was ratified successively by all
of them, and the Constitution became the supreme law
of the land.
» 4 Elliott's Debates, 248. * Idem.
1(30 THE CONSTITUTION.
ORDER AND MANNER OP RATIFICATION.
§ 439. 1st. irThe first state which ratified the. Con-
stitution was Delaware, which did so on the 7th Decem-
ber, 1787, — without condition or the recommendation
of an amendment.
§ 440. 2d. 2 The second was Pennsylvania, which,
in like manner, without any declaration or recommenda-
tion, ratified it on the 12th of December, 1787.
§ 441. 3d. The next was New-Jersey, which ratified
on the 18th December, 1787? as is declared in their
ratification, by the unanimous consent of all the mem-
bers.
§ 442. 4th. 3The fourth was Connecticut, which
likewise ratified without any declaration, on the 9th
January, 1788.
§ 443. 5th. 4The next was Georgia, which ratified,
without condition or resolution.
§ 444. 6th. The sixth was Massachusetts. In th&
convention of this state, there was much opposition5 to
the Constitution, and at first a majority against it. In
consequence of this, it was finally ratified with the
declaration of the convention, that in their opinion, cer-
tain amendments and alterations were necessary to
remove the fears, and quiet the apprehensions of many
of the good people of that commonwealth.
The amendments recommended were as follows,
viz :a
1 . That 7 it be declared that all powers not expressly
delegated by the Constitution should be reserved to the
several states, to be by them exercised.
2. That there should be one representative to each
> Elliott's Deb. vol. 4, p. 207. * Idem. 202. » idem. 209. * Idem. 212.
s 2 Pitkin's Civ. Hist., 266. 6 4 Elliott's Debates,211.
'Note. — Whenever resolutions or other proceedings are given in this
work, except in the case of the Constitution, they are set forth substrnv-
tially.
TIIK RATIFICATION OF
161
thirty thousand persons, until the whole number of
persons amounted to two hundred.
3. That Congress should not exercise the power of
making regulations for electing members of Congress,
unless the states neglected to make such regulations, or
made them subversive of a free and equal represen-
tation.
4. That Congress do not lay direct taxes, but when
the funds arising from impost and excise are insufficient,
nor then till they have first made a requisition on each
of the states for their quota, and the states have neg
lected or 'refused to pay their proportion.
5. That Congress erect no company of merchants
with exclusive advantages.
6. That no person be tried for a crime, or suffer an
infamous punishment, or loss of life, except in the mili-
tary or naval service, without indictment by a grand
JU1T-
7. The United States Judiciary shall have no juris-
diction of causes between citizens of different states,
unless the matter in dispute extend to $3000, nor the
judicial power extend to actions between citizens of
different states when the matter is not of the value of
$1500.
§ 445. 8. In civil actions between citizens of differ-
ent states, issues of fact at common law shall be tried
by jury, if the parties request it.
9. Congress shall not consent, that any person hold-
ing an office of profit or trust under the United States
shall receive any title or office from a king, prince, or
foreign state.
§ 446. With the recommendation of these amend-
ments, Massachusetts, after great opposition,1 ratified the
Constitution on the 7th of February, 1788.
§ 447- It will be seen in the Constitution, that the
sixth recommendation in relation to Indictments is im-
» 4 Elliott's Debates, 212.
102 THE CONSTITUTION.
bodied in the fifth amendment to the Constitution, and
that the eighth recommendation is included in the seventh
amendment. With the exception of these two, none of
the recommendations were ever adopted.
§ 448. 7th. irPhe seventh state to ratify the Consti-
tution was Maryland. This was done without any col-
lateral resolutions, on the 28th of April, 1788.
§ 449. 8th. The next was the state of South Caro-
lina, which ratified on the 23d of May, 1788. Accom-
panying their recommendation also, were several reso-
lutions, the substance of which is as follows ; viz.
1. The first resolution was the same as the third of
Massachusetts, in relation to the power of Congress to
regulate the elections of its members.
2. The second was the same as the first of Massa-
chusetts, in relation to the powers not expressly granted.
3. The third was the same as the fourth of Massa-
chusetts, in relation to direct taxes.
4. The fourth was a verbal criticism on the third
section of the sixth article.
5. The fifth made it a standing instruction to the
delegates from that state to endeavor to have these al-
terations made.
None of these proposed amendments were ever made.
§ 450. 9th. 2Th'e ninth state which ratified, and
which made up the number which was necessary to put
the Constitution in operation, was New-Hampshire;
this took place on the 21st of June, 1788. In the con-
vention of this state, as in Massachusetts, there.was great
opposition to the Constitution, and their ratification was
accompanied with the following recommendations.
1. The first is the same as those of Massachusetts
and South Carolina, in relation to powers not expressly
delegated.
2. The second is the same as the second of Massa-
chusetts.
» Elliott's Debates, 213. * 4 Idem, 214.
THE RATIFICATION OF 163
3. The third, fourth, fifth, sixth, seventh, eighth, and
ninth alterations proposed are the same with the cor-
responding ones, proposed by Massachusetts. In fact,
as far as the tenth, the New-Hampshire propositions
seem to have been a literal copy from those of Massa-
chusetts.
10. The tenth was, that no standing army should be
kept in time of peace, without the consent of three-
fourths of both branches of Congress, nor shall soldiers
in time of peace be quartered upon private houses with-
out the consent of owners.
11. Congress shall make no laws touching religion,
nor infringe the rights of conscience.
12. Congress shall not disarm citizens unless such
as have been in rebellion.
The latter part of the tenth alteration proposed is
embraced in the third amendment to the Constitution.
The eleventh is included in the first amendment to the
Constitution. The twelfth is the second amendment.
§451. 10th. The tenth state in the order of ratifica-
tion was Virginia, which ratified on the 26th June, 1788.
In this state also there was much opposition, and their
ratification was accompanied by a declaration of rights,
in substance as follows ; viz.
That the people may resume the powers of govern-
ment, when they are perverted and abused to their in-
jury and oppression ; that every power not granted re-
mains with them and at their will; that no right can be
cancelled, abridged, or restrained by Congress, the
President, or any department or officer of the United
States, except where the power is given by the Consti-
tution for these purposes; and that the rights of con-
science and of the press cannot be so restrained, modi-
fied, or cancelled.
This declaration contained the substance of many of
the resolutions offered by other states; and we shall
» 4 Elliott's Debates, 215.
1(54 THE CONSTITUTION.
*ee, in the course of this chapter, the portion of them
which was adopted.
§ 452. 11th. Thr, rleventh state adopting the Con-
stitution was New- York. Their ratification was made on
the 26th July, in the year 1788. It was accompanied
by a long declaration of rights, and a series of proposed
amendments.
In addition to the amendments already proposed by
other states, there were the following: —
That Congress should not impose an excise on any
article of the growth, production, or manufacture of the
United Stales.
That no person should be eligible as President, Vice-
Presideit, or member of Congress, who was not a nat-
ural born citizen, or a citizen on the 4th of July, 1776,
or held a commission under the United States during
the war, and became citizens subsequently, and who
fsha'l be freeholders.
That to borrow money, or declare war, two-thirds of
the senators and representatives present must concur.
That the privilege of Habeas Corpus shall not be
suspended for a longer time than six months, or until
twenty days after the meeting of the next Congress.
That the right of exclusive jurisdiction over ten miles
square shall not exempt its citizens from paying the
same taxes that other. citizens do, nor privilege them
from arrest for crimes committed, or debts contracted
without the district.
That the right of exclusive jurisdiction over certain
public places shall not authorize Congress to prevent
the operation of the state laws in civil and criminal
matters, except as to persons in the employ of the
United States, nor as to them, in respect to crimes.
That the compensation of members of Congress be
fixed by standing laws, and no alteration operate for
the benefit of members making it.
1 4 Elliott's Debates, 216.
THE RATIFICATION OF 1Q5
That the Journals of Congress shall be published at
least once a. year, except such parts as may require
secrecy; that they shall keep their doors open; and
that two members may require the yeas and nays.
That no capitation tax shall be laid.
That no person shall be senator more than six years
out of twelve; that the legislatures may recall their
senators and elect others.
That no member of Congress shall, during the time
for which he was elected, be appointed to any office
under the United States.
That the power of Congress to pass bankrupt laws
should only extend to merchants and traders, and that
the states have power to pass other insolvent laws.
That no person be eligible as President a third time.
That the executive shall not grant pardons for trea-
son without the consent of Congress, but may reprieve
them till heard by Congress.
That the President, or person acting as such, shall
not command the army in the field unless by desire of
Congress.
That all letters patent, commissions, writs, &c,
should run in the name of "the People of the United
States," and be tested in the name of the President of
the United States, or the first judge of the court out of
which process shall issue.
That Congress should constitute no inferior tribunals
with appellate power, except such as are necessary for
admiralty and maritime jurisdiction, and in other cases
where the jurisdiction is not original, causes shall be
tried by the state courts, with a right of appeal to the
Supreme Court.
That the court for the trial of impeachments shall
consist of the Senate, the judges of the Supremo
Court, and the chief judge of the highest court in each
state.
That no jvdge of the Supreme Court shall hold any
166 THE CONSTITUTION.
other office under the government of the United States,
or any of them.
That the militia shall not be compelled to serve out
of the state for more than six weeks, without the con-
sent of the legislature.
None of these propositions were adopted, but taken
in connexion with the amendments proposed by other
states, they show what construction was, at the time,
placed upon some of the most important clauses of the
Constitution.
§453. 12th. » The twelfth state which ratified the Con-
stitution was North Carolina, on the 21st of November,
1789. In this state, also, there was great opposition,
and a resolution was passed, declaring that a bill of
rights should be annexed to the Constitution, and sev-
eral amendments adopted.
§ 454- The ratification of New-Hampshire, the ninth
in order, was received by Congress on the 2d of July,
1788. They then appointed a committee to report an
act to put the Constitution into operation. Under that
act the Constitution went into operation on the 4th of
March, 1789. It has been seen that North Carolina
did not ratify till November, so that the first election of
President was made by eleven states.
§ 455. Rhode Island was not represented in the Con-
vention, and did not ratify the Constitution till the 29th
of May, 1790,2 more than a year after it had gone into
practical operation. The ratification was accompanied
by a Declaration of Rights, and the recommendation of
many amendments. They recommended nearly all the
alterations proposed by other states, and the following
additional ones ; —
That the judicial power of the United States, in which
a state is a party, shall not extend to criminal prosecu-
tions, nor to authorize any suit, by any person, against
a state.
» 4 KM «t»i Debates, 221. a Idem. 225.
THE RATIFICATION OP 167
That no amendment shall take effect without the con-
sent of eleven states.
That no person shall be compelled to do military duty
without voluntary enlistment.
That no standing army be kept in time of peace.
These alterations were not adopted, except the one
in relation to suits by individuals against a state, which
is imbodied in the eleventh amendment to the Constitu-
tion.
§ 456. The Constitution, after its formation, was
addressed to the President of Congress, and accompa-
nied by a letter from General Washington, President of
the Convention, — from which the following extracts are
taken.
The letter shows, in a remarkable manner, in what
light the Constitution was then viewed, and what were
the objects of its formation. They were very different
from the fanciful constructions which metaphysical poli-
ticians have since been disposed to put upon it.
§ 457- lIt is obviously impracticable in the federal
government of these states, to secure all rights of inde-
pendent sovereignty to each, and yet provide for the in-
terests and safety of all. Individuals entering into
society must give up a share of liberty to preserve the
rest. The magnitude of the sacrifice must depend, as
well on situation and circumstance as on the object
to be obtained. It is at all times difficult to draw with
precision the line between those rights which must be
surrendered and those which may be reserved; and, on
the present occasion, this difficulty was increased by a
difference among the several states as to their situation,
extent, habits, and particular interests.
In all our deliberations on this subject, we kept steadily
in our view that which appears to us the greatest interest
of every true American, the consolidation of the Union,
in which is involved our prosperity, felicity, safety, —
» Elliott's Debates, 249.
1GS THE CONSTITUTION.
perhaps our national existence. This important considera-
tion, seriously and deeply impressed upon our minds, led
each state in the Convention to be less rigid on points
of inferior magnitude than might have been otherwise ex-
pected; and thus, the Constitution, which we noiv present,
is the result of a spirit of amity, and of that mutual de-
ference and concession, which the peculiarity of our polit-
ical situation rendered indispensable.
§ 458. The spirit in which our Constituton was form-
ed, and the great object to be obtained by it, were very-
different from the spirit and objects entertained by some
modern politicians. Then the consolidation of our union
was the great end, to which all other objects were pro-
nounced, by Washington and his fellow-statesmen, of in
ferior magnitude. Now, consolidation, whether of the
union, of law, or of government, is the great object of
fear and danger to a class of men, who either think or
assert themselves to be the purest of patriots !
§ 459. At the first session of the first Congress, the
Senate and House of Representatives, two-thirds con-
curring, recommended to the states the adoption of
twelve amendments to the Constitution, comprising
chiefly those parts of the recommendations of the states
which we have already noticed as having been adopted.
Ten of these amendments were adopted1 by three-
fourths of the legislatures of the states, and became a
part of the Constitution. Subsequently, three other
amendments were added.
§ 460. On the 10th of January, 1791, Vermont, the
first of the new states, joined the union, and gave its
assent to the Constitution. Since then the Constitution
has been adopted, assented to, and ratified by ten new
states, who have become integral parts of the great
whole, and, as we shall hereafter see, indissolubly con-
nected by the union. In this manner the Constitution
was ratified, and received its binding force from the
i 4 Elliott's Debates, 227.
THE RATIFICATION, &,C. 269
people in the several states, not from the state govern
ments.
§ 461. The language of the ratifications is remarka-
bly uniform, and remarkably explicit, as to the source
whence the Constitution receives its authority and force.
All the ratifications commence with, We, the delegates
of the people thereof; and all terminate by making the
ratifications in the name of their constituents, the
people.
It is plain throughout, that some other binding force
was thought necessary than mere state authorities
The people, — common constituents, it is true, of both
state and national governments, — were everywhere
summoned, in their original and sovereign capacity, to
give authority to that union and Constitution, which was
not a compact among state governments, but among the
people, who are equally sovereign over both national
and state governments, and upon whom the Constitution
acts directly and personally. •
§ 462. Among the constructions given to the Consti-
tution at the time, in the declarations of the states rati-
fying it, may be remarked the following fact, — that
Massachusetts explicitly declared, that the rights not ex
pressly granted were reserved to the states, — and Vir-
ginia, on the other hand, as explicitly held, that all
powers of the Constitution were derived from the people
of the United States, and those not granted were re-
served to them. These states have now exactly re-
versed their positions, and exhibit a new evidence of
the instability of human opinion. Indeed, to those who
love truth more than argument, all the metaphysical
subtilties of the profoundest philosopher would weigh
little, in construing the Constitution, against such facts
as the Letter of Washington, the ratifications of the
states, the debates of the Convention, and the declared
object of all the statesmen who participated in the acts
and doings of that day.
J5
170 THE CONSTITUTION.
§ 463. When Congress met in December, 1848, thirty-
states had been admitted into the American Union. The
following- are their names and the dates of admission, in-
cluding the dates at which the original states ratified the
Constitution :
1. Delaware, ratified the Constitution 7th of Decem-
ber, 1787, without condition or amendment.
2. Pennsylvania, on the 12th December, 1787, without
declaration or recommendation.
3. New Jersey, on the 18th December, 1787, with the
unanimous consent of all the members of its convention.
4. Connecticut, on the 9th of January, 1788, without
any declaration.
5. Georgia, on the 2d of January, 1788, without con-
dition.
6. Massachusetts, on the 7th of February, 1788, with
a declaration that certain amendments were necessary.
7. Maryland, on the 28th of April, 1788, without any
declaration.
8. South Carolina, on the 23d of May, 1788, with a
recommendation of amendments.
9. New Hampshire, June 21st, 1788, with a recom-
mendation of amendments.
10. Virginia, on the 26th of June, 1788, with a De-
claration of Rights.
11. New York, on the 26th of July, 1788, with a re-
commendation of amendments.
12. North Carolina, on the 21st of November, 1789,
after having recommended a Bill of Rights.
13. Rhode Island, on the 29th of May, 1790.
14. Vermont was received into the Union — being the
first of the new stales — on the 10th of January, 1791, and
a little more than three years from the time that Delaware
(the first of the states of the Union) ratified the Constitution.
15. Tennessee was received, by act of Congress, June
1st, 1796.
16. Kentucky was received into the Union June, 1792.
17. Ohio was received into the Union February 19th,
1803.
THE RATIFICATION OP 17 1
18. Louisiana was received into the Union April 8th,
1812.
19. Indiana was received into the Union December
11th, 1816.
20. Mississippi was received into the Union December
16th, 1817.
21. Illinois was received into the Union December
3d, 1818.
22. Alabama was received into the Union December
14th, 1819.
23. Maine was received into the Union March 15th,
1820.
24. Missouri was admitted into the Union August 10th,
1821.
25. Arkansas was admitted into the Union June 14th,
1836.
26. Michigan was admitted into the Union January
26th, 1837.
27. Texas was annexed March 1st, 1845.
28. FlotvIDa was received into the Union March 3d,
1845.
29. Iowa was received into the Union March 3d, 1845.
30. Wisconsin was received into the Union March,
1847.
§ 464. If the manner in which these states have been
received into the Union, be historically examined, it will
be found that there are four different modes in which the
States of the Union have been constituted: First, There
were the thirteen original states, which acquired their in-
dependence by the Revolutionary War and the Peace of
1783 : Secondly, There are the states formed out of terri-
tory which belonged to the original states: Thirdly, The
states formed out of territory acquired by purchase : and
Fourthly, A state annexed by virtue of a joint resolution
of Congress. Should California and New Mexico be
formed into states, there will "be a fifth class of states —
those formed from territory acquired by conquest.
§ 465. Of the thirty states how constituting the Union,
thirteen were of the first class, original states ; twelve, viz. :
172 THE CONSTITUTION.
Vermont, Maine, Kentucky, Tennessee, Alabama, Mis-
sissippi, Ohio, Indiana, Illinois, Michigan, Wisconsin and
Iowa, were formed from the territory belonging- to the
original states; four, viz.: Louisiana, Arkansas, Missouri
and Florida, were formed from purchased territory — the
three first purchased of France, and the last of Spain ; one
state (Texas) was annexed.
§ 466. At the election of General Washington, in No-
vember, 1788, eleven states only voted (vide Par. 454);
but at the election of 1848, sixty years afterward, thirty
states voted. In the election of 1848, the relative propor-
tion of electoral votes cast by the old and new states, were
as follows :
The old states, including Maine (in 1788 voting
with Massachusetts), cast electoral votes - - 164
The new states cast electoral votes 126
This fact may be cited to prove both the growth of the
Union and the elasticity of its government, which thus
develops a capacity to extend its numbers and territories
to indefinite limits. The Union and the Republican, Rep-
resentative and Federative Government which it has
established, is capable, so far as human judgment can now
discern, of folding within its benign embrace, an indefi-
nite number of states and unnumbered millions of the
human race
STATE GOVERNMENTS. 173
i
CHAPTER IV.
THEORY OF THE STATE GOVERNMENTS.
§ 467. By article 4th, Section 4th, of the United States
Constitution, the United States guarantees to every state
in the Union, a republican form of government. Most of
the colonies had charters previous to the Revolution, es-
pecially the New England states, which conceded to them
all the rights of self-government ; but after the Declara-
tion of Independence, and at the close of the war, nearly
all of them formed Constitutions for themselves. Con-
necticut continued to have her civil government adminis-
tered by the charter of Charles the 2d, till the year 1818 ;
and Rhode Island, likewise, lived under the charter of
Charles till 1842.
§ 468. The order of time in which the state Constitu-
tions were formed, is as follows, viz.:
1. The first Constitution formed among the states, was
that of New Jersey, which was ratified by the Provincial
Congress July 2d, 1776. This was two days before the
Declaration of Independence, and it was provided, that if
a reconciliation took place, that instrument should be null
and void.
2. The next Constitution formed was that of Virginia,
which was adopted July 5th, 1776. In 1830 a con-
vention was called, and the Constitution changed and
amended.
3. Maryland formed her Constitution August 1 4th,
1776, which was amended successively in 1795, 1799,
and November, 1812.
4. North Carolina formed her Constitution Decem-
ber 18th, 1776, which was amended in 1835.
5. Massachusetts formed her Constitution March 2d,
1780, which was altered and amended November 3d,
1820. ;•
Id*
174 STATE GOVERNMENTS.
6. Delaware formed her first Constitution September
20th, 1776, and a new Constitution June 12th, 1792.
7. New York formed her first Constitution April 20th,
1777, which was amended October 27th, 1801, and fur-
ther amended November 10th, 1821. A new Constitu-
tion was formed and adopted in 1846, which is at present
in force.
8. Pennsylvania formed a Constitution September 28th,
1776, another in September, 1790, and another in 1836.
9. South Carolina formed a Constitution March 26th,
1776, which was amended in March, 1778, and in June,
1790.
10. New Hampshire formed a Constitution January
5th, 1776, which was altered in 1784, and was further al-
tered and amended in February, 1792.
11. Georgia formed a Constitution February 5th, 1777,
a second in 1785, and a third in May, 1798.
$ 469. The above states were all that had regular Con-
stitutions prior to the admission of new states. Connecti-
cut and Rhode Island still remained under the charters of
Charles the 2d.
§ 470. The provision of the Constitution, under which
new states are admitted, is that of the 3d section of the 4th
article ; and also that of the 4th section of the same arti-
cle. These clauses, taken together, impose three laws, or
elements, which must enter into the admission of new
states. 1st. The term of authority used is may — not shall.
Hence it is in the power of Congress to deny such admis-
sion, although the state applying for admission may be
formed out of the territory and population of the United
States. 2d. The United States, as a nation , guarantees
to each of these new states, a republican form of govern-
ment. This is a right, which belongs, not only to the
state, but to the Union. The state has a right to demand,
and the Union must enforce, a republican government.
3d. The Union shall protect each of the states against in-
vasion and against domestic violence. These are the con-
ditions attendant upon the admission of new states.
§ 471. Progress of the States. — The provision of the
STATE GOVERNMENTS. J75
United States Constitution by which new stales may be
admitted, has proved elastic enough to add more than the
original number, and indefinite in its power to extend the
magnitude, numbers and glory of the Union. The pro-
gress of the state Constitutions, since 1790, has been as
follows :
12. Vermont was formed from a part of the state of
New York, by the consent of its Legislature, by the act
of March 6, 1790. Application was made by its Com-
missioners for admission, February 9th, 1791, and it was
admitted March 4th, 1791. A Constitution had been pro-
fessedly formed in December, 1777 ; but its present Con-
stitution was adopted July 9th, 1793.
13. Kentucky was formed from the territory of Vir-
ginia, with the consent of its Legislature, by the act of
December 18th, 1789.1 The application of the conven-
tion of Kentucky was made December 9th, 1790, and it
was admitted June 1, 1792. The Constitution of Ken-
tucky was formed August 17th, 1799.
14. Tennessee was formed from territory ceded to the
United States by the state of North Carolina. She form-
eda convention and adopted a Constitution February 6,
1796. An act for its admission was passed and approved
June 1, 1796.
15. Ohio was formed from the territory north-west of
the river Ohio. This territory was ceded to the United
States by the General Assembly of Virginia, in 1783, and
accepted by the Congress of the United States March 1,
1784. On the 13th of July, 1787, Congress passed ^vhat
is called the Ordinance of 1787, for the government of
this territory. (See the Ordinance in full, page 229 of
this work.) On April 30th, 1802, Congress passed an
act to allow the eastern division of said territory to form a
Constitution and state government. On the 1st of No-
vember, 1802, a Constitution was formed, and presented
to Congress January 7th, 1803. On February 19th, 1803,
an act was passed and approved for the due execution of
the laws within that staie.
IBioren's and Duane's edition of the Laws, Vol. 1, page 673.
176 STATE GOVERNMENTS.
16. Louisiana was formed out of the territory ceded to
the United States by France, by treaty of April 30th, 1803.
The act to enable the President to take possession of this
territory, was passed October 31st, 1803. Louisiana was
divided into two territories by the act of Congress, March
26th, 1804. One was called the Territory of Orleans, the
other the District of Louisiana. March 2d, 1805, an act
was passed, authorizing the people of Orleans Territory to
form a Constitution and state government, when their
number should amount to sixty thousand. On the 20th
of February, 1811, an act was passed, allowing them to
form a state Constitution and to have one Representative
till the next census. January 22d, 1812, the people form-
ed a Constitution -and state government, and gave the state
the name of Louisiana. By the act of April 8, 1812,
these proceedings were approved, and the laws of the
United States extended over the new state.
17. Indiana was formed out of the North-western Ter-
ritory, ceded to the United States by Virginia. (See Ohio.)
The'territory was established by act of May 7th, 1800.
The territory was' divided into two separate governments,
and that of Michigan created by act of January 11, 1805.
The territory was again divided into two separate gov-
ernments, and that of Illinois created by act of February
3d, 1809.
The Legislature of Indiana applied to be enabled "to
form a state Constitution. (See Journal of the House of
Representatives, 1815-16.)
An act to enable the people of Indiana to form a state
government, was passed April 19th, 1816.
The people of Indiana formed a Constitution accord-
ingly, June 29th, 1816.
Indiana was received into the Union, by joint resolution,
December 11, 1816.
18. Mississippi was formed out of territory ceded by the
state of South Carolina, August 9th, 1787, and by the
state of Georgia, April 24th, 1802.
The government of the territory was established by act
of Congress, April 7th, 1798.
STATE GOVERNMENTS. 177
A joint resolution of Congress, "requesting the assent of
the state of Georgia to the formation of two states of the
Mississippi territory," was passed and approved June 17th,
1812.
An act to enable the people of the western part of Mis-
sissippi territory to form a Constitution and state govern-
ment, was passed March 1st, 1817.
The people of this territory formed a state Constitution
August 17th, 1817.
Mississippi was admitted into the Union as a state, by
act of Congress, approved December 10th, 1817.
19. Illinois was formed from a part of the North-west-
ern Territory, ceded to the United States by Virginia.
(See Ohio.)
An act (see Indiana) was passed February 3d, 1809,
dividing Indiana into two separate governments, and or-
ganizing Illinois.
A memorial to the House of Representatives from the
{Legislative Council, to be allowed*to form a state govern-
ment, was presented January 16th, 1818.
An act to enable the people of Illinois territory to form
a constitution, was approved April 18th, 1818.
The people of Illinois formed a state Constitution August
26th, 1818.
The state of Illinois was admitted into the Union by
act of Congress, December 3d, 1818.
20. Connecticut, though one of the old thirteen states,
lived under the charter of Charles the 2d, April 23d, 1662,
till the year 1818, September 15th, when a Constitution
was formed and adopted.
21. Alabama was formed out of a part of the territory
ceded by South Carolina and Georgia. (See Mississippi.)
The eastern part of Mississippi territory was made into
a separate territory, called "Alabama," by act of Congress
March 3d, 1817."
A petition from the Legislative Council of Alabama,
praying that the people might be allowed to form a. state
Constitution, was presented to the House of Representa-
tives December 1 7th. 1818.
178
STATE GOVERNMENTS.
An act to enable the people of Alabama to form a Con-
stitution and state government, was passed March 2d, 1819.
The people formed a Constitution August 2d, 1819.
Alabama was admitted into the Union by act passed
December 14th, 1819.
22. Maine was formed out of a part of the territory of
Massachusetts.
An act of the Legislature of Massachusetts was passed
on the 1 9th of June, 1 8 19, permitting that part of the state
known as Maine, to form a separate state.
A petition from a convention of the people of Maine,
praying to be permitted to form a separate state, was pre-
sented to the House of Representatives December 8th,
1819.
A Constitution was adopted in convention October 8th,
1819.
Maine was admitted into the Union on the 15th day of
March, 1820.
23. Missouri was formed out of part of the territory
ceded by France, by the treaty of April 30th, 1803. (See
Louisiana.)
By act of March 26th, 1804, Louisiana was divided in-
to two territories.
By act of March 3d, 1805, a separate government was
formed, under the title of the Territory of Louisiana.
By the act of June 4th, 1812, it was provided that the
territory before called Louisiana, should be called " Mis-
souri."
A memorial of the Legislative Council and House of
Representatives of Missouri, for admission into the Union
as a state, was presented to the Senate December 29th,
1819.
An aet to authorize the people of the Missouri Territo-
ry to form a Constitution and state government, was pass-
ed March 6th, 1820.
By act of March 2d, 1821, Missouri was admitted into
the Union on a certain "condition." The "condition"
was accepted by the Legislature of Missouri, in a public
act, June 26th, 1821.
STATE GOVERNMENTS. 179
By proclamation, dated August 10th, 1821, the Presi-
dent declared the admission of Missouri complete, accord-
ing- to law.
24. Arkansas was formed out of part of the territory-
ceded by France to the United States, by treaty of April
30th, 1803. (See Louisiana.)
An act establishing- a separate territorial government in
the southern part of the territory of Missouri, was passed
March 2d, 1819, by which it was named Arkansas.
A memorial of the inhabitants, by convention, praying
that Arkansas may be admitted into the Union, accom-
panied by a Constitution formed by said convention, was
presented in the House of Representatives March 1st,
1836.
The Constitution of Arkansas was formed on the 30th
of January, 1836.
An act for the admission of the state of Arkansas into
the Union, was passed June 15th, 1836.
25. Michigan was formed out of a part of the North-
western Territory, ceded to the United States by the state
of Virginia. (See Ohio.)
An act to divide Indiana territory into two separate
governments, and establish the territory of Michigan, was
passed January I lth, 1805.
A memorial for admission was presented in the House
of Representatives December 11th, 1833.
An act to establish the northern boundary of the state
of Ohio, and to provide for the admission of the state of
Michigan into the Union, was passed June 15th. 1836.
An act to admit the state of Michigan into the Union,
upon an equal footing with the original states, was passed
January 26th, 1837.
26. Rhode Island, though one of the original thirteen
states, remained under the charter of Charles 2d, grant-
ed in 1662, till September, 1842, when this state formed
a Constitution for herself.
27. Florida was formed out of territory ceded by Spain
to the United States by the treaty of February 22d, 1819.
An act to enable the President to take possession of
180 STATE GOVERNMENTS.
East and West Florida, and establish a temporary gov-
ernment therein, was passed March 3d, 1819.
An act to establish a territorial government in Florida
was passed March 30th, 1822.
A memorial of Florida, with a Constitution formed,
was presented to the House of Representatives February
20th, 1839.
An act for the admission of the states of Iowa and
Florida into the Union, was passed March 3d, 1845.
28. Iowa was formed out of the original territory of the
United States.
An act to divide the territory of Wisconsin and to es-
tablish the territorial government of lovva, was passed
June 12th, 1838.
February 12th, 1844, a memorial from the Legislative
Assembly of Iowa for admission into the Union, was pre-
sented in the Senate.
December 9th, 1844, a memorial of a convention, with
a copy of a Constitution adopted by the people of Iowa,
was presented in the Senate, asking admission into the
Union.
An act for the admission of the states of Iowa and
Florida into the Union, was passed March 3d, 1845.
29. Texas was an independent republic, formed out of
Mexican territory, and annexed to the United States by a
joint resolution of Congress, approved March 1st, 1845.
In July, 1845, Texas formed and adopted a Constitution.
On the 29th of December, 1845, a joint resolution was
passed by Congress, declaring Texas a state of the Union,
on equal terms with the original states.
30. Wisconsin was formed out of the North-western
Territory, ceded to the United States by Virginia. (See
Ohio.)
A memorial of the Legislative Council of Michigan
was presented in the House of Representatives March 1st,
1836, for the division of that territory, and that the terri-
tory of Michigan be established.
An act establishing the territorial government of Wis-
consin, was passed and approved April 20th, 1836.
STATE GOVERNMENTS.
181
On March 20th, 1845, a resolution of the Legislative
Council of Wisconsin was presented in the Senate, asking
that provision be made for holding a state convention for
forming a state Constitution.
August 6th, 1846, a bill to enable the people of Wis-
consin territory to form a Constitution and state govern-
ment, and for the admission of such state into the Union,
was passed and approved.
December 16th, 1846, the people of Wisconsin formed
and adopted a state Constitution.
March 3d, 1847, an act for the admission of the state
of Wisconsin into the Union, was passed and approved.
Two members of Congress from that state, took their
seats in th*e 30th Congress.
§ 472. Modes of admitting States, and the Forma-
tion of new States. — In article 464, it was stated that there
were four modes in which states were constituted — from
the original states, from territory belonging to them, from
territory purchased, and by annexing an independent state.
Thus, there were thirteen original states, twelve from ter-
ritory which belonged to the original states, viz. : Ver-
mont, Maine, Kentucky, Tennessee, Alabama, Mississip-
pi, Ohio, Indiana, Illinois, Michigan, Iowa, Wisconsin ;
four from territory purchased, viz.: Louisiana, Missouri,
Arkansas and Florida ; and one by annexation, viz. : Tex-
as. But there are, also, different legal methods of admis-
sion. Thus, the thirteen original states came into the
Union, as we have seen, by ratifying — that is, adopting —
a Constitution formed by a national convention. The
moment they ratified that Constitution, they became sub-
ject to its duties, rights and liabilities. Three of the
present states became members of the Union from farts
of other states, by the joint act of Congress and those
states, viz. : Vermont, Kentucky and Maine. This was
in conformity to section 3d of article 4th of the Constitu-
tion. Twelve of the present states were admitted as states,
after previously passing through the condition of a terri-
tory, by act of Congress. One state (Tennessee) was ad-
mitted from territory of the United States, by act of Con-
182
STATE GOVERNMENTS.
gress, without having had a territorial government; and
one state (Texas) was admitted by joint resolution of Con-
gress, having been an independent state.
An analysis of these modes shows, that there are really
three legal methods of receiving a state, established by the
practice of the government under the Constitution :
1st. A state may be formed from part of a state, by the
joint act of the Congress of the United States and of the
state from which it was formed.
2d. A state may be formed from a territory already
organized, by a simple act of Congress.
3d. A state may be formed by the annexation of an in-
dependent state, with the consent of that state and a joint
resolution of Congress.
In the latter case the theory is, that receiving an inde-
pendent state into the Union is an act of national sover-
eignty, and that it is only necessary that the constituted
authorities of each should consent. It is not forbidden by
the Constitution, and is, therefore, one of those national
powers which may be exerted with the national consent.
There is one other legal method of admitting a state,
which has not yet been practiced. This is, by the formation
of a state from parts of two states. For example, East Ten-
nessee and Western North Carolina might be formed into
a state. In that case, it may be received by the joint act of
Congress and of each of the states from which it was formed.
§ 473. The thirty stales which, in 1849, made up the
American Union, have all regularly formed Constitutions.
These Constitutions are all formed upon the same princi-
ples with each other, and with the Constitution of the
United States. They all observe the same division of the
government into the three parts of Executive, Legislative
and Judicial. They all adopt the representative principle,
and are all republican. One-half of them are accompanied
with declarations of right — a measure of superabundant
caution — for the evils which they are generally intended
to operate against, could not take place if the state Consti-
tutions had no existence, as the Constitution of the United
States effectually prohibits them.
STATE GOVERNMENTS. 183
§ 474. As all the state Constitutions are similar to each
other, and nearly, in form, the same with the Constitution
of the United States., it will be unnecessary, for the purpose
of instruction, to consider more than one of them ; and for
this purpose we may take the Constitution of Ohio, and
point out, also, some differences between that and the Con-
stitutions of other states.
CONSTITUTION OF OHIO.
§ 475. The Constitution of Ohio contains eight articles.
The first three articles divide the powers of the state
government into three departments, viz. : legislative, ex-
ecutive and judicial, and define their powers.
Article 4th declares who shall be electors in state
elections, and what shall be their rights.
Article 5th declares and defines in what manner the
officers of the militia shall be elected.
Article 6th defines and regulates the manner, in
which certain civil officers shall be elected.
Article 7tii treats of certain civil officers, the seat of
government, the boundary of the state, and other miscel-
laneous subjects.
Article 8th is a Declaration of Rights.
§ 476. Article 1st declares that the Legislative Pow-
er of the state shall be vested in a General Assembly,
which shall consist of two branches — one the Senate and
the other the House of Representatives. The Senators
must be chosen biennially, and- retain their office two
years, in such a manner that one-half shall be chosen
each year. The House is to be chosen every year, and
the members serve one year.
In the General Assembly thus constituted, are vested
all the legislative powers which are not inconsistent with
the Constitution of the state or of the United States, and
which concern the affairs of the state, and the rules and
regulations of their own bodies.
§ 477. Article 2d declares that the supreme executive
power of the state is vested in a Governor. He is to be
chosen by the same electors as those for the General As-
184 STATE GOVERNMENTS.
sembly, every two years, holding his office for two years.
His powers are to command the army, navy and militia
of the state, to grant pardons, to appoint to office in va-
cancies which arise during the recess of the Legislature,
and to require information from executive officers. His
signature is not required to the laws enacted by the Gen-
eral Assembly.
§ 478. The 3d article vests the Judicial power of the
state in a Supreme Court, in Courts of Common Pleas
for each county, in Justices of the Peace, and in such other
courts as the Legislature may establish. The Judges of
the Supreme Court have a final appellate jurisdiction, in
all cases, civil and criminal. Original jurisdiction belongs
both to the Common Pleas and the Supreme Courts.
Matters of probate, testaments and guardians, belong to
the Court of Common Pleas. The Judges of the Supreme
Court and of the Common Pleas, are elected by the Leg-
islature. Justices of the Peace are elected by the electors
in each township.
§ 479. Article 4th defines all electors to be "white
male inhabitants, above the age of twenty-one years, hav-
ing resided in the state one year next preceding the elec-
tion, and who have paid, or are charged with, a state or
county tax," and provides that all such persons shall enjoy
the right of an elector. The last clause of the same arti-
cle declares that "all persons who are compelled to labor
on the roads of their respective townships or counties,"
shall be considered as being charged with a tax, and, in
that respect, qualified electors. All white inhabitants above
twenty-one, are chargeable with such a tax : and, there-
fore, in Ohio, suffrage may be considered universal to white
male inhabitants above twenty-one years of age.
The Supreme Court has decided that a person is white
who has less than one-half 'negro blood.
§ 480. The Declaration of Rights recites all those
things which are considered as inherent elements of per-
sonal liberty— such as the right of freedom, of speech and
the press, of religious worship, of the trial by jury, and of
a speedy administration of justice.
STATE GOVERNMENTS. 185
§ 481. We observe that, in the outlines of the Consti-
tution of Ohio, it corresponds very well with that of the
United States.
1st. Like that of the United States, Power is divided
into three departments — legislative, executive and judicial.
2d. That the legislative department is likewise divided
into two branches — the Senate and the House.
3d. That, like Congress, they decide on the qualifica-
tions of their own members, and determine the rules of
their own proceedings.
4th. The Executive, like the President, is chief of such
naval and military force^as the state may employ.
5th. The judiciary is constituted on the same plan of
Supreme and minor courts.
In fine, the general principles of the state Constitutions
and those of the United States are the same. The great
differences consist in the subject-matter upon which they
respectively act, and the kind of power which is granted.
§ 482. The principal differences between the national
and state Constitutions may be thus defined : The Consti-
tution of the United States, being national, regards nation-
al objects, and is vested with powers chiefly external, while
the state Constitutions, being subordinate and local, act
almost wholly upon municipal and internal affairs.
§ 483. What, then, is the object and extent of state
legislation? The Constitution of the United States ex-
pressly defines all power into three distinct classes.1 1st,
Those powers and rights delegated to the government of
the United States in the national Constitution ; 2d, Those
delegated to the states in the state Constitutions ; 3d, Those
reserved to the people. For the first class, we must refer
to the Constitution of the United States ; for the second,
to the Constitutions of the states ; and the last are all those
not included in the two former. The last class of rights
are those generally called inalienable — such as the rights
of personal liberty and of private worship, and the great
right of amending or abrogating government — for, as ev-
ery people have the right to make their government, they
ISee 10th amendment to the United States Constitution.
16*
1S5 STATE GOVERNMENTS.
cannot be deprived. of the right of abrogating it; though
the last cannot be exercised by individuals, in opposition
to existing laws. It must be the sovereignty of the peo-
ple creating revolution.
The powers of the state governments, then, are all that
great body of authority which the Constitution of the
United States does not, directly or indirectly, prohibit to
the states, and the people have not themselves retained.
§ 484. Without entering into details, we may briefly
notice some of the most important powers possessed by the
states.
1st. The Constitution of the United States, while di-
recting that a representative body should be chosen, left
the regulation of the elective franchise to the states ; for it
Jdirects that the "electors" shall have the same qualifica-
tions as electors for the most numerous branch of the Legis-
latures. Each state, then, in regulating the elective
franchise for itself, also regulates that of the government
of the Union, and may make it as enlarged or as restrict-
ed as it pleases.
2d. Another power possessed by the states,2 is that of
partaking in the formation of the national Senate. Though
this would seem to place the existence of the Senate in
the power of the states, yet such is not the fact ; for the
Constitution, in another provision, gives Congress the
power to make and alter regulations as to times and man-
ner of choosing senators : if, then, Congress make such
regulations, and the states do not choose their senators at
that time and in that mode, they will act unconstitutional-
ly, and place themselves in the wrong.
3d. Another power possessed by the states,4 is contain-
ed in the mode of choosing the President. The states
appoint, in such manner as the Legislatures direct, the
electors ; but, in this case, as in that of senators, the pow-
er to act or not act, is not left with the states. By anoth-
er clause,5 Congress appoints the time of choosing electors,
and the day of giving their votes.
1 Art. 1, Sec. 2, IT. S Constitution. ~ Idem, Section 3.
3 Idem, Sec. 4. 4 Art. 2, Sec. 2, 17. S. Constitution. 5Sec. 4.
STATE GOVERNMENTS 187
§ 485. But the greatest and most important authority
of the state governments, is that of enacting the whole body
of local and municipal laws, and enforcing them by the
organization and process of judicial courts. This class
of laws is that which most intimately concerns the happi-
ness and prosperity of the people. An act of incorpora-
tion by the Legislature, or the location of a canal, may
double the value of property, or a series of unwise enact-
ments destroy the peace or paralyze the industry of socie-
ty, when the distant war, upon which the nation is en-
gaged, is scarcely felt.
§ 486. The state governments are chiefly concerned
with four classes of laws. 1st, Those which relate to pri-
vate property and private rights — such as the laws of in-
heritance, of wills, of debtor and creditor, &c. 2d, Such
as relate to corporate and public bodies — such as turnpike
and bridge companies, chartering cities, charitable and
literary institutions. 3d, Those which relate to public
property, public works, and public institutions — such as
public buildings, state canals, public schools, and state in-
stitutions of benevolence. 4th, Those which relate to the
punishment of crime — such as what constitutes crime, the
extent of punishment and the mode of conviction. But
crimes committed on the high seas, or those against the
laws of the United States, are not within the jurisdiction
of the states.
In addition to these great powers of state legislation,
there are some of a miscellaneous character — such as the
organization of the militia, and the co-operation of the
states in amendments to the national Constitution.1
DIFFERENCES IN THE STATE CONSTITUTIONS.
§ 487. Within the last few years, several of the states
have made new Constitutions, and many new states have
been admitted to the Union. The result, in general, has
been to reduce the state Constitutions to very nearly the
same general principles. Some differences, however, may
be noted.
1 Article 5th United States Constitution.
138 STATE GOVERNMENTS.
1st. One of the principal differences in the state govern-
ments, is in the power of the Executive. In some in-
stances, he has the same veto power as the President of the
United States. His signature is required to a law, and if
he refuse,it requires two-thirds of the Legislature to pass it.
Such is the case in Georgia, Mississippi and New Hamp-
shire.
In other states, such as Ohio, his signature is not re-
quired to laws at all, and it is never affixed.
In another class of states, such as Kentucky and Indi-
ana, the Governor's signature is required, and he may
make objections ; but if he does object, the two houses of
the Legislature may reconsider the law, and pass it, not-
withstanding his objections, by a majority of all the mem-
bers elected to each house.
In Vermont, the passage of a law may be suspended till
the next Legislature, by the Governor and Council.
2d. AnotherdifTerencein the state Constitutions consists in
the definition of the right of suffrage. Of late years, how-
ever, and in the new Constitutions, this difference has al-
most dwindled away — almost all the Constitutions having
provided for universal suffrage in the case of white males
over twenty-one years of age.
The variations of the right of suffrage consist chiefly
in the time of residence. Thus, in New Hampshire, the
right of suffrage is vested " in every male inhabitant of
twenty-one years of age, except paupers and persons ex-
cused from paying taxes by their own request." This
seems to leave the right to depend on the definition of
inhabitancy, without reference to time.
In Maine, three months residence is required.
In Illinois, the requisition is six months residence in the
state.
In Tennessee, it is six months in the county.
In Connecticut, it is six months residence and militia
duty, or state tax, and moral character.
In Indiana, Vermont, North Carolina, Georgia, Ala-
bama, Missouri, New Jersey, Maryland, Massachusetts, New
York, Mississippi, Ohio and Louisiana, one year's residence
STATE GOVERNMENTS. [QQ
is required. In Georgia, Alabama and Missouri, the voter
must have resided three months within the county.
In Maryland, Massachusetts and Mississippi, there must
be six months residence within a county.
Pennsylvania, Delaware, and South Carolina, require
two years residence and state tax.
Kentucky requires a residence of two years in the state,
and of one within the county.
In North Carolina and Virginia there is a slight prop-
erty qualification. But, generally, the qualifications re-
quired of a voter are so slight, that suffrage is said to be
universal.
3d. Another difference between the various state gov-
ernments, consists in the organization of the Judiciary.
Thus, some states have separate Chancery courts, and in
some, the powers of chancery are vested in the Common
Law courts. In some states, there are separate Probate
courts, and in some, the duties of Probate courts are per-
formed by the courts of Common Pleas. So, also, crim-
inal and civil courts are sometimes separate and sometimes
conjoined.
These variations in fact, however, amount to nothing ;
for, in substance, the same general system of laws pervades
all the states, and is, with some necessary changes, mod-
eled on the laws and courts of England. In the state of
Louisiana, indeed, there is an exception. The civil code,
or Roman law, prevails there.
190 GENERAL PRINCIPLES.
CHAPTER V.
THE NATURE AND GENERAL PRINCIPLES OF THE
GENERAL AND STATE GOVERNMENTS.
§ 488. There are certain general principles which per-
vade the federative system of the United States govern-
ment. We shall state these, with a citation of the several
parts of the Constitution upon which they rest, without
any further comment upon them :
§ 489. Proposition J. The government of the United
States is a Repvblic. Refer to the 7th definition (page 20),
and then to article 1, section 1st and section 2d, of the
United States Constitution.
§ 490. Proposition 2. The government of the United
States is a Federative Republic. See article 1st, section
2d and section 3d ; article 4, sections 2d, 3d and 4th.
§ 491. Proposition 3. The government of the United
States is a Democratic Federative Republic. See defini-
tion 8th (page 21), also, article 1, section 1st, and section 2d
and section 3d. Refer to the state Constitutions for the
right of suffrage, vesting the power of election in the whole
body of the people.
§ 492. Proposition 4. The democracy of the United
States is a Representative Democracy. Senators, represen-
tatives and electors are chosen. See article 1, section 2d
and section 3d ; article 2d, section 1st and section 2d.
§493. Proposition5. The foundation of the govern-
ment is the consent of the people. See the Declaration of
Independence.
§ 494. Proposition 6. The sanction of the govern-
ment is responsibility to the people. Refer to modes of elec-
tion for representatives, article 1, section 2d, of the Con-
stitution ; for executive, article 2, section 1st ; for impeach-
ment, article 1, section 3d ; for power of appointment, see
article 2d, section 2d. The judiciary is appointed by the
President, who is responsible to the people.
NATURE AND PRINCIPLES OF THE 19 J
§ 495. Proposition 7. The principle of the govern-
ment is the virtue of the people. Upon what other
foundation can republican government rest % Refer to
the history of Greece, Rome, and France.
§ 496. Proposition 8. The Constitution of the United
States proceeds from the people, in their sovereign capaci-
ty. Refer to article 7th of the Constitution, and to the
terms of the original ratifications by the states.
§ 497. Proposition 9. The Constitution of the United
States acts upon both individuals and states. For its ac-
tion on the states, refer to article 1, section 3d, section 4th
and section 10th. For individuals, see art. 1; section 8th.
§498. Proposition 10. The Constitutions of the states
act upon individuals, but not upon the government of the
United Slates nor upon each other.
Thaf they act upon individuals, refer to the state Con-
stitutions. That they do not act on each other is evident,
because they are independent and sovereign as to each
other.
That they cannot exercise any power over the national
government, is decided by the Supreme Court. See
M'Cullough vs. the state of Maryland, 4th vol. Wheaton's
Reports, 316.
§499. Proposition 11. The government of the United
States is not a mere league. The powers vested in the
national government prove this. For a complete exposi-
tion of this point, see President Jackson's Proclamation,
10th December, 1832.
§500. Proposition 12. The government of the United
States is sovereign in its national capacity. For a nation to
be sovereign, it must govern itself. Now, the government
of the United States does govern itself. It lays taxes, de-
clares war, makes peace, enters into treaties, coins money,
regulates commerce. See article 1, section 8th; article 2,
section 2d ; article 3, section 2d.
§501. Proposition 13. The governments of the states
are sovereign in their Municipal, and are not sovereign
in a National, capacity. Refer to the state Constitutions
for the objects of state legislation. Refer to article 1,
192 GENERAL AND STATE GOVERNMENTS.
section 10th, for the prohibitions^ in the United States
Constitution, on state power.
§ 502. The above propositions are sufficient to show
the nature and general principles of the United States
Government. The American people are one nation, gov-
erning; itself, by virtue of the original, natural and inhe-
rent rights of man. The government thus constituted has
no foundation but the common consent of the governed,
and no sustaining principle but the virtue and capacity of
the people to govern themselves. This government is
two-fold — one a national government, and one the govern-
ment of states, united with one another. Both these forms
of government are founded on the Representative system.
The whole constitutes a Democratic Federative Republic.
It is a government which, proceeding from the people,
exists only at their pleasure ; but within its constitutional
limits, has absolute authority over individuals. The laws,
both of national and state governments, constitutionally
enacted, are of binding obligation upon all individuals
within their jurisdiction. It is a government of laws, but
of laws sustained by the whole community.
PRACTICAL OPERATION OF THE ^93
CHAPTER VI.
PRACTICAL OPERATION OF THE NATIONAL
CONSTITUTION.
§ 503. When the Constitution had been ratified by the
requisite number of states, it had acquired its legal force,
but was inert till properly put into operation. The peo-
ple had made it .an instrument of great and beneficent
powers, but their action under it was necessary to give it
life. The mode of doing this had been provided by the
convention. They had " resolved, that as soon as the con-
ventions of nine states should have ratified the Constitu-
tion, Congress should fix a day on which electors should
be appointed by the states which should have ratified ihe
same, and a day on which electors should assemble to
vote for President, and the time and place of commencing
proceedings under the Constitution. That, after such pub-
lication, the electors should be appointed, and the senators
and representatives elected," and such other regulations
as were necessary, &c. ; and that, "after the President
was elected, he and Congress should, without delay, pro-
ceed to execute the Constitution."
§ 504. Accordingly, Congress, after the ratification of a
sufficient number of states, in July, 1788, Ordered,1 that
the several ratifications of the Constitution of the United
States be referred to a committee, to examine and report an
act for putting said Constitution into operation. A com-
mittee was appointed, and the following resolution passed:2
" Resolved, that the first Wednesday in January next be
the day for appointing the electors in the several states,
which, before said day, shall have ratified the Constitu-
tion ; that the first day in February next be the day for
the electors to assemble in their respective states, and vote
for a President ; and that the first Wednesday in March
next be the time, and the present seat of Congress the
1 Elliott's Debates, 221 . 2 idem, 222.
17
194 NATIONAL CONSTITUTION.
place for commencing proceedings under said Consti-
tution."
§ 505. In pursuance of this resolution, the elections in
the several states were held at the time appointed ; and
on Wednesday, the ith of March, 1789, the Constitution
went into practical operation. On the 30th April, George
Washington, unanimously elected, was inauguratedPresi-
dent of the United States. Subsequently to this, North
Carolina and Rhode Island, which had not then ratified,
joined the Union. Soon after, a number of amendments,
the effect of which we have heretofore considered, were
recommended to the states by two-thirds of Congress, and
adopted.
§ 506. Thus the operation of the Federal Government
was begun. The arrangement of the Judiciary, the rules
of proceedings, the organization of the departments, and
the appointment of officers, were within the power of
Congress and the Executive, and formed the earliest ob-
jects of their consideration.
.§ 507. In practice, as well as theory, the government
is divided into three great departments, having distinct
duties to perform — the Executive, the Legislative, and the
Judicial. In this order we shall consider the practical
operation of the government.
I. OF THE EXECUTIVE.
§ 508. By article 2, section 1st, of the Constitution, the
executive 'power is vested in the President. By section 2d,
he is commander in chief 'of the army, of the navy, and of
the militia, when called into actual'service. He may re-
quire the opinion, in writing, of the principal officers of
the executive departments, upon any subject relating to
the duties of their offices, and has power to grant reprieves,
pardons, &c, &c. He has the appointment, in conjunc-
tion with the Senate, of embassadors, other public min-
isters, consuls, judges of the Supreme Court, and all
other officers of the United States, except those inferior
officers whose appointment the Congress may vest in
the heads of departments, courts, &c. He receives
PRACTICAL OPERATION OF THE J 95
embassadors and other public officers, takes care that the
laws are faithfully executed, and commissions officers.
§ 509. These are all the general duties annexed by the
Constitution to the office of President. We have already
seen that they could not be performed till Congress had
first erected the offices which were to be filled, and enacted
the laws which were to be executed. We shall now see
how this was done.
§ 510. The constitutional duties above enumerated,
comprehend all the executive duties of the government;
for the President is the only executive officer known to
the Constitution, and the only one responsible to the peo-
ple. The duties, however, are obviously too numerous
and various for one man ; hence, the Constitution con-
templated the appointment of inferior officers, and the di-
vision of labor among subordinates. For this purpose,
Congress has, at different times, created the Departments
of State, Treasury, War, Navy, Post-office, Attorney Gen-
eral and Home Department. The duties of each of these
departments have been prescribed, and may be consid-
ered separately.
I. OF THE DEPARTMENT OF STATE.
§ 511. This department was created by the act of the
'15th September, 1789. The presiding officer is called
Secretary of State, and, like other officers, is commission-
ed with the advice and consent of the Senate. His duty
is to conduct the foreign affairs of the United States,
whether by correspondence, commissions, instructions, or
memorials, with foreign powers or public ministers. He
keeps the seal of the United States, and affixes it to all
civil commissions, provided they have the signature of tbe
President. He is intrusted with the publication and
distribution of all acts and resolutions of Congress,
and all treaties with foreign nations, and Indian tribes.1
He preserves the original of all treaties, public doc-
uments, laws, and correspondence with foreign powers;
he preserves copies of the several statutes of the states,
1 Act of April 20th, 1818
196 NATIONAL CONSTITUTION.
grants passports to citizens, and controls the Patent
Office.
§ 512. These duties may be divided into classes. 1.
Those which concern foreign intercourse ; 2. Those
which concern the preservation and distribution of the
laws ; 3. Which regard the authenticity of commissions ;
4. Those which concern copyrights and patents.
1. Of Foreign Intercourse. — It is necessary that nations
should hold intercourse together, for the purpose of regu-
lating trade, avoiding injuries, and terminating differences.
It is equally obvious that they cannot treat together im-
mediately, as two individuals ; they must, therefore, hold
their conferences by means of delegates — that is, by pub-
lic ministers.1
§513. A public minister properly signifies any one
charged with public affairs, but is here understood as one
who is charged with the care of public affairs at a foreign
court. Of these, there are now several orders.
§ 514. The highest order is one which properly repre*
sents the government, or sovereignty, and is entitled to act
for it upon all occasions. A person of this rank is called
an Embassador?
§ 515. The next rank is that of Envoy. This term
signifies one who is sent, and means a minister sent for a
particular purpose — as to adjust a special commercial
treaty, or arrange disputed boundaries. There are envoys
ordinary and extraordinary ; of the same rank, also, are
ministers plenipotentiary, who are sent with powers to
make a particular treaty: thus, Messrs. Adams, Clay, Sic,
were Ministers Plenipotentiary to form the Treaty of
Peace at Ghent.
§ 516. The third order is that of Ministers Resident,
or Charge d) Affaires — which means one who is charged
with the ordinary affairs of the nation at a foreign court.
§ 517. These are all the orders of public ministers
as commonly understoood, resident, at foreign courts.
There are, however, several other classes of public offi-
1 Vattel's Law of Nations, book iv, chap, v, sect. 55, 56.
2 Idem, chap, vi, sect. 71, 72.
PRACTICAL OPERATION OF THE 197
cers, through whom intercourse is held with foreign
nations.
§ 518. To each foreign embassy is attached a Secretary
of Legation. This officer performs the duties of a secre-
tary, or clerk, to the mission, and is frequently left in
charge of affairs when a minister is recalled.
§ 519. Consuls are commercial agents, appointed to re-
side in the seaports of foreign countries, with a commis-
sion to watch over the commercial rights and privileges
of the nation deputing them.1
Their duties are limited and defined in treaties of com-
merce, and by the statute regulations of the country they
represent. No nation is bound to receive a consul, unless
it has agreed to do so by treaty, and its refusal to do so is
no violation of peace and amity. They are, however,
almost universal among civilized nations, and are impor-
tant both to commercial interests and national affairs.
§ 520. The duties of consuls, prescribed by the laws
of the United States, may be defined as follows: 1. To
act as administrators upon the estates of such American
citizens as die abroad, without leaving legal representa-
tives abroad, and then account to the treasury. 2. When
vessels are stranded, to take care of the property and de-
liver it to the owners. 3. To receive from American ves-
sels abroad, their sea letters, legal documents, <fcc, and
return them on departure of the vessel. 4. When a
crew is discharged abroad, to receive from each seaman a
month's pay, as a fund for the relief of American seamen.
5. To provide for the support and passage to the United
States of destitute American seamen, in a reasonable
manner.
These consuls are appointed by the United States, in
all the principal commercial ports of the world, and. their
great object is to ascertain the legality of the trade in
American vessels, and give protection and relief to Ameri-
can seamen and citizens.
§ 521. Credentials. A 'public minister is known by
his credentials. 2 Letters of Credence are the instruments
1 1 Kent's Coram., 40. 2 Vattel, book iv, chap, vi, sect. 76, 77.
17* r
198 NATIONAL CONSTITUTION.
which authorize and establish a minister in his character^
with the government to whom they are addressed : they
are his general Letter of Attorney.
§ 522. Instructions are the secret letter of directions
given by a government to its minister, to inform him how
he is to act and what he is to perform.
§ 523. For the purpose of preserving the dignity of
their respective governments, and performing their duties
with safety, public ministers and their' servants are, by the
laws of 'nations,1 allowed certain privileges, viz. :
§ 524. The persons of ministers are sacred and in-
violable among all nations. This privilege extends to them
from the time they first enter the country to which they
are sent. So, also, they are allowed personal safety in
all countries through which they pass.
§ 525. lA public minister has an entire independence
of the jurisdiction and authority of the state where he
resides. To these rules there is an ^exception, in case of
an embassador's converting these privileges into licentious-
ness. If an embassador abuses his privileges and com-
mits wrong, he may be restrained: 1st, By application to
his master, and if he fail to recall him, by ordering him
out of the country. 2d, In case he take up arms, or com-
mit open violence, he may be quelled by force. In case
he intrigue, or form a conspiracy, he may be arrested, or
otherwise disposed of according to the exigency of the
case. A well known instance of that kind occurred in
this country, in the case of Genet, the French minister,
during the administration of General Washington. ; The
President only requested the French government to recall
M. Genet, which was done ; no doubt harsher measures
would have been justifiable.
§ 526. 3A consul is not such a public minister as to be
entitled to the privileges of that character, nor is he under
the special protection of the laws of nations.
§ 527. The credentials of foreign ministers are received
by the Secretary of State, and examined ; all the business
1 Vattel, book iv, chap, vi, sect. 81, 83, 92, 93.
2 Pitkin's Civ. Hist., vol. ii. 3 Kent's Comm.,vol. l,p.43.
PRACTICAL OPERATION OF THE 199
and correspondence is carried on by him : it is in writing
and placed on record.
§ 528. The other duties of the Secretary of State are to
grant passports to citizens visiting foreign countries ; to
preserve the originals of public documents, and to publish
the laws, resolutions and orders of Congress; to publish
a biennial catalogue of public officers ; to authenticate
commissions with the seal of the United States; and, in
general, to perform all the duties which appertain to the
authentication of national proceedings and intercourse
with foreign nations.
II. OF THE TREASURY DEPARTMENT.
§ 529. The object of this department is to manage the
monied concerns of the government. The general duties
of the Secretary of the Treasury are to receive and dis-
burse the public revenues ; to propose and digest plans for
the improvement and management of the public revenue
and the support of public credit; and to make reports to
Congress upon all matters referred to him.
To enable him to perform these duties — many of which,
in relation to auditing public accounts and collecting the
revenue, are of a complicated character — the business of
the treasury department is subdivided among several sub-
ordinate officers. These are:
First Comptroller, who examines and certifies the ac-
counts and balances of the 1st and 5th auditors.
Second Comptroller, who examines and certifies the
accounts of the 2d, 3d and 4th auditors, and keeps a record
of requisitions.
First Auditor receives and examines the accounts in
relation to the revenue and civil list ; certifies- balances,
and transfers them, with vouchers, to the 1st comptroller.
Second Auditor receives and settles accounts in rela-
tion to the pay, subsistence, forage, clothing, hospitals, ar-
mories, arsenals, ordnance, recruiting service, and contin-
gencies of the army, and those accounts relative to the
disbursements of the Indian service.
Third Auditor examines and settles the accounts rela-
/&
is&U-*****^
200 NATIONAL CONSTITUTION.
tive to the Quarter-Master's department of the army, the
military academy, fortifications and roads.
Fourth Auditor examines the accounts of the navy
department, and certifies them, with vouchers, to the 2d
Comptroller.
Fifth Auditor is charged with the revision and settle-
ment of accounts in relation to the state department, the,
general post-office and the Indian department.
The Treasurer receives and keeps the public moneys,
and disburses the same upon warrants drawn by the Sec-
retary and countersigned by the Comptroller.
The Register, keeps all accounts of the receipts and
expenditures of public moneys
The Solicitor of the Treasury is a law officer, who
superintends the civil suits commenced in the name of the
United States, until they come into the Supreme Court
of the United States, when they pass into the hands of
the Attorney General.
III. of the war department.
§ 530. This is one of the original departments, having
been organized in August, 1789. The general duties of
the Secretary of War are, a superintendence overall mil-
itary affairs.
§ 53 1. In order to facilitate business, this department is
divided into the following subdivisions, the nature of which
may be understood by their titles :
1. The War Office is the office of the Secretary and
his correspondence.
2. The Requisition Bureau, in which the requisitions
of the war department on the Treasury are made out.
3. The Bqjjnty Land Office.
4. The General Staff Office.
5. Office of the Adjutant General.
6. Engineer Bureau.
7. Topographical Bureau.
8. Ordnance Department.
9. Quarter Master's Department.
10. Purchasing Department.
practical operation of the 201
1 1 . Pay Department.
12. Subsistence Department.
13. Medical Department.
IV. OF THE NAVY DEPARTMENT.
§ 532. The Navy department was not created till ten
years after the establishment of the government. The
office of Secretary of the Navy was created by the act of
the 30th of April, 1798. He is, by usage, a member of
the Cabinet, and holds his office at the will of the Presi-
dent. He has a general superintendence of the naval*
establishments, and appoints such clerks, navy agents, and
other subordinate officers as are necessary to the duties of
that department.
§ 533. A Board of Navy Commissioners was estab-
lished in 1815. Their office is attached to that of the Sec-
retary of the Navy, and he discharges all the ministerial
duties of said office, relative to the construction, arma-
ment, equipment, naval stores, and materials of vessels of
war. They have clerks, a draughtsman, messenger, &c.,
for their ordinary business.
V. THE POST-OFFICE DEPARTMENT.
§ 534. The practical operations of the Post-office de-
partment have been in existence ever since the Revolu-
tion ; but the organization of the department in its present
form, was made by the act of April 30th, 1810. The
office is under the direction of a Postmaster General, with
three assistants, and such clerks and other officers as are
necessary.
The business of the Post office department is to trans-
mit the mail, and distribute its contents throughout the
United States. For this purpose, the Postmaster General
has the arrangement of mail routes, the decision on mail
contracts, the appointment of postmasters, and, in one
word, the supervision of the whole mail arrangement of
the country. The enumeration of the following subordi-
nate offices of the department, will show in what manner
this business is divided :
202 NATIONAL CONSTITUTION,
First Assistant Postmaster General.
Book keeper's Office,
Solicitor's Office,
Pay Office,
Examiner's Office,
Register's Office.
Second Assistant Postmaster General.
Office of Appointments and Instructions,
Dead Letter Office,
Office of Mail Depredations.
• Third Assistant Postmaster General.
Office of Mail Contracts.
VI. HOME DEPARTMENT.
§ 535. This is a new department, created by the act of
March 3d, 1849. The Secretary of the Home depart-
ment takes his place, as other Secretaries, in what is call-
ed the Cabinet. The Secretary of the Home department
has a supervisory power over those bureaus, or offices,
which have, by law. been transferred from other depart-
ments to constitute the new department. The subordi-
nate bureaus attached to this office are these, viz. :
1. The Land Office,
2. The Patent Office,
3. The Indian Department,
4. The Bureau of Pensions,
5. The Coast Survey.
§ 536. The Commissioner of the General Land Office
superintends the surveys, sales and records of the public
lands of the United States. In a country of such vast
public domain as this, the business of the General Land
Office is very extensive. To transact it, there are the fol-
lowing subordinate officers :
1. Surveyors General,
2. Registers of the Land Office,
3. Receivers of the Land Office.
§ 537. The Surveyors General (of whom there are
now seven) survey the public lands accurately into squares
of six hundred and forty acres each, called sections ; and
PRACTICAL OPERATION OF THE 203
these again into smaller squares of three hundred and
twenty, one hundred and sixty, eighty, and forty acres, in
which tracts they are sold.
§ 538. The Registers record the sales, issue certificates,
and procure patents.
§ 539. The Receivers receive the money arising from
the sales, and account for it to the government.
§ 540. The Commissioner for Indian Affairs has
charge of the Indian bureau. This office is charged with
the making treaties, holding intercourse, and all business
connected with the Indian tribes. This is chiefly con-
ducted by officers called Indian agents.
§ 541. The Commissioner of Patents has charge of
the Patent Office and the statistics of agriculture. The
laws of the United States, under the Constitution, author-
ize a patent to be issued to inventors and discoverers.
They must first make a specification of what the inven-
tion is, and if a machine, furnish a model. A patent,
however, cannot be issued when there is already one for
the same machine. The Commissioner of Patents decides
on all such matters, and takes charge of all the business
connected with patents.
§ 542. The Commissioner of Pensions has charge of
the payment of pensioners. These are a large class, and
pension agencies are established in most of the large
towns of the United States.
543. The Superintendent of the Coast Survey is
also under the supervision of the Home department. This
office was established for the trigonometrical survey of the
coast, for the greater accuracy of geography and the se-
curity of commerce.
vn. the attorney general.
§ 544. The Attorney .General is also, by courtesy, a
member of the Cabinet. His office is not so much that
of an executive department of the government as that of a
counsellor to the Executive. He is, in fact, the law offi-
cer of the government. In this respect, however, he is
rather the superintendent of law affairs than the attorney
204 NATIONAL CONSTITUTION.
in particular suits. He attends to the business when pre-
pared in detail, and argues cases before the Supreme
Court.
The business of the Treasury and other departments
at Washington, is attended to by the Solicitor of the treas-
ury. The local business of the United States in the sev-
eral states, is attended to by an official in each judicial
district, called the United States District Attorney.
I. THE MINT.
§ 545. This is not a separate department, but may be
regarded as a separate bureau of the government. The
Constitution has made gold and silver a legal tender,1 so
far as regards the laws of the states, and has forbidden the
states to coin money. The duty, therefore, of coining
money, devolves upon the national government, and hence
Congress has instituted the office of the mint for that pur-
pose. The law for this purpose was enacted April 2d,
1792.
The office of the Mint has a general Director, who is
the chief of the establishment ; a chief coiner, who attends
to the coining ; an assayer, who tests the purity of the
metal; an engraver, who prepares the dies for the coin ;
a melter and refiner, who melts the metal and prepares it
in bars and ingots for the rolling mill ; and a treasurer,
who receives and gives receipts for all metals legally
brought to the Mint.
.§ 546. Every person is allowed to bring gold and silver
bullion to the Mint to be coined, and it is coined as soon
as practicable after it is brought there. If it be of the
standard value of the United States, it is coined free of
expense. If not, it is coined at the expense of the owner.
II. OPERATION OF THE LEGISLATURE.
§ 547. The operation of the National Legislature con-
sists in the exercise of the law-making power. Congress
consists of two branches, the Senate and the House of
Representatives. The organization of these bodies re-
1 Article 2, section 10th.
PRACTICAL OPERATION OF THE 205
spects, 1st, their Officers, 2d, their Committees, and 3d,
their Rules.
§ 548. Of their officers: there are in each a presiding offi-
cer. In the Senate, this is the Vice President, if present.
If not, one of the Senators elected pro tern. In the House,
it is the Speaker, elected by the House. The duties of
the Speaker (and those of the presiding officer of the Sen-
ate) are to preside and keep order in the Assembly ; to
appoint committees, unless specially directed otherwise
by the House ; to sign all acts, addresses and joint reso-
lutions passed, and all writs, warrants and subpoenas is-
sued by the House. He puts all questions to the House,
and, in case of ballot, is entitled to vote ; in other cases he
is not, unless the House is equally divided, or his vote
would make it equal.
§ 549. Each House has, also, a Clerk. His duty is to
make a complete journal of the proceedings of the House ;
to procure the printing of such bills, reports, documents,
<fcc, as are necessary to the business of the House ; and
transact all such business as pertains to the duties of a
recording officer.
§ 550. Each House has, ajso, a Sergeant-at-Arms and
a Door-keeper. The Sergeant-at-Arms is the ministeri-
al officer of the House, and executes its commands, issues
its processes, and performs functions similar to those of a
sheriff The office and duties of Door-keeper are explain-
ed by the name.
§ 55 1 . The chief business of legislation is done by com-
mittees in each Assembly. To these, matters of business
are referred for examination and report. In the House,
the committees are appointed by the Speaker ; in the Sen-
ate, by ballot. In the House they consist of seven mem-
bers each, and in the Senate of five.
§ 552. The committees are appointed in reference to the
chief subjects of legislation. The principal committees
are :
The committee on Foreign Relations.
The committee on Commerce.
The committee on the Judiciary.
13 J
206 NATIONAL CONSTITUTION.
The committee on Military Affairs.
The committee on Manufactures.
The committee on Agriculture.
The committee on Naval Affairs.
The committee on Ways and Means.
$ 553. The committee of Ways and Means is peculiar
to the House of Representatives, because, by the 1st arti-
cle, 7th section of the Constitution, all u bills for raising
revenue " must originate in the House of Representatives.
Hence, the House appoint a committee of "Ways and
Means," which has become, in the course of practice, one
of the most important parts of the machinery of govern-
ment, because in this committee are first digested the
various plans of revenue.
§ 554. These committees are called Standing Commit-
tees; but there are also others, raised by the House for
any particular purpose, called Select Committees. The
House may refer to these committees any subject it pleas-
es, and has always power to control its own action. There
is one committee which seems, at first, singular. This is
the committee of the Whole. In fact, the whole House re-
solves itself into a committee, and puts a member in the
chair, for the purpose of more free discussion, untrammel-
ed by the rules of the House. This committee of the
Whole rises and reports its doings to the Speaker of the
House, in the same manner as any other committee. The
members when in the House may, on second thoughts,
confirm their own doings or not.
§ 555. The regular order of business at the regular ses-
sions of Congress, is as follows : 1 St, The Speaker, Clerk and
officers are elected. The House is then said to be organized.
2d, A committee is then sent to the President, to inform him
that the House is ready to receive a communication from
him. 3d, The President's message is then usually sent in.
4th, Next, the House refers the different subjects of the mes-
sage to different committees. 5th, After these proceedings,
the House proceeds in the ordinary business of legislation.
§ 556. The order of daily business is:
1. Petitions from each state and territory
PRACTICAL OPERATION OF THE 207
2. Reports from standing or select committees.
3. Resolutions.
4. The order of the day, which is the unfinished busi-
ness, or business appointed for that particular day.
§ 557. To carry a bill through the House, a certain
process is necessary. Thus, every bill must be read three
times previous to its passage — usually on three different
days — and each reading must receive the formal sanction
of the House.
The first reading of a bill is for information ; and if
opposition be made, the Speaker puts the question, " Shall
this bill be rejected ?" If no opposition be made, or the
majority on the question of rejection is in its favor, the
bill goes to its second reading without opposition. The
final vote is usually (not always) taken on the third read-
ing of the bill ; but sometimes, when the vote is close,
the vote is also taken on its passage. Whenever a formal
vote is taken on the third reading or passage, it is taken
by yeas and nays. The members vote alphabetically, as
their names are called, in the affirmative or negative.
§ 558. The rules and usages observed in the American
Congress are those usually called Parliamentary Rules,
and are adopted from the usages of the British Parlia-
ment. They are all favorable to deliberate and prudent
legislation, and to the just rights of the minority.
§ 559. When a billjias passed, either in the Senate or
House, it is carefully engrossed by the Clerk, and sent to
the other House by a proper person. When a bill has
passed both Houses, it is duly enrolled- on parchment by
the Clerk of the House of Representatives or Secretary of
the Senate, before it is presented to the President. It is
carefully examined by committees appointed in both
Houses, who make a report, when it is signed by the
Speaker of the House and the President of the Senate,
and sent to the President for his signature.
§ 560. The signature of the President is affixed to all
bills which meet his approbation, and this completes the
last act of 'practical legislation.
208 NATIONAL CONSTITUTION.
III. OPERATION OF THE JUDICIARY.
§ 561. By article 3d, section 1st, of the Constitution,
the judicial power of the United Slates is vested in a Su-
preme Court, and such inferior courts as Congress may
appoint. Congress has also power to make all laws ne-
cessary and proper to carry these provisions into effect, and
in 1789, Congress passed the Judiciary Act, which has
since been frequently amended, organizing the Supreme
and inferior courts, and prescribing the mode of action.
The courts are, 1st, A Supreme Court, composed of a
Chief Justice and eight associate Justices : 2d, District
Judges, of which districts there are now thirty-eight in
number: and 3d, A Circuit Court, consisting of one
Judge of the Supreme Court and the District Judge, sit-
ting together.
§ 562. The object of the United States Judiciary is the
administration of justice according to the United States
laws. The jurisdiction of these courts we have defined
in another place. See the discussion of the Judiciary,
from paragraph 324 to paragraph 395.
§ 563. The officers of the United States courts, by which
they execute their orders, are of four kinds, viz. : Clerks,
Marshals, Attorneys and Reporters.
§ 564. The duty of a Clerk is to keep an exact record
and journal of all the proceedings of the Court, with a
history of each suit, and an entry of all the orders, decrees,
judgments and acts of the Court. This record is of such
solemn import, that when a cause has once been decided
it cannot be impeached, but is conclusive against all the
parties to it, their heirs and successors, forever.
§ 565. The Marshal is the executive officer of the
Court. He ministers, or acts, for the Court, in all its ex-
ecutive proceeding. If the Court make an order or judg-
ment, he enforces it. If resistance is made, he acts by
force, and for this purpose has a right to appoint deputies,
and call upon all bystanders for assistance.
The Marshal attends upon the sittings of the Court, and
executes its process. He sometimes has other duties as-
NATIONAL CONSTITUTION. 209
signed him ; but his general and proper duty is to execute
the process of the Court.
§ 566. Attorneys at Law are persons supposed to be
learned in the law, and as such, are appointed by the
courts to practice law and conduct suits within their juris-
diction.
Attorneys at Law are, properly, officers of the Court,
being appointed by the Court and removable at the pleas-
ure of the Court.
In the United States Courts, any one may practice who
may practice in the courts of highest judicature within
their respective states.
§ 567. A Reporter is likewise an officer of the Court.
He is one licensed by the Court to report its judicial de-
cisions and opinions. Any one may, doubtless, report the
proceedings of a court, but they would have no weight or
authority, unless done under the sanction and inspection
of the court.
§ 568. The decisions of a court are carried out by, 1st,
A judgment or decree, in which the court pronounces its
decision, and directs what must be done : 2d, By the pro-
cess, by which the judgment is executed. This process
may be to imprison the body, or to confiscate and sell the
property of a defendant, if judgment be given against
him. In the case of capital crimes, the judgment may
direct the prisoner to be put to death by hanging. In the
United States courts, this process is executed by the Mar-
shal, who is the executive and ministerial officer of the
court.
18
210 STATE GOVERNMENTS.
CHAFFER VII.
PRACTICAL OPERATION OF THE STATE GOVERN-
MENTS.
§ 569. The essential difference between the National
and State Governments — that one regards national, or ex-
terior affairs, and the other only ?nunicipal, or interior af-
fairs— includes also the chief difference between the practi-
cal operation of the state governments and that of the
nation. The state governments, like the national govern-
ment, have the three great departmental divisions, viz. :
the Executive, the Legislative, and the Judicial operations.
I. THE EXECUTIVE.
§ 570. The duties of the Governors of the several states
are, in general, analogous to those of President of the
United States ; but, of course, confined to the limits of the
state. Here we may remark, that the Governor of a
state has no political or official power out of a state ; for
the limits of the state are the limits of his jurisdiction.
§ 571. The principal duties of a Governor are :
1. To command the militia and military array of the
state.
2. To see the laws faithfully executed, so far as de-
pends on the Executive, and not the Judiciary.
3. To require reports and opinions from the heads of
departments.
4. To communicate information to the Legislature on
the state of public affairs.
5. To exercise the pardoning power when necessary.
6. In some of the states the Governor is vested with
much of the appointing power ; but in Ohio, he has none
except the appointment of a very few minor officers.
§ 572. The states generally have a Secretary of State,
a Comptroller or Auditor, Treasurer, &c, in analogy with
the national government.
PRACTICAL OPERATION OF THE 211
II. THE LEGISLATURE.
§ 573. The mode in which the state Legislatures act
in legislation, is almost exactly the same with that of the
national Legislature. The state Legislatures, like the
national Legislatures, have two branches — the House and
the Senate. Each has its Speaker, Sergeant-at-Arms and
Door-keeper. Each is governed by the same system of
parliamentary rules, and the process by which laws are
passed is the same.
In some of the states, the Governor, like the President
of the United States, has a veto power over legislation ;
but generally the Governors have no such power.
III. THE JUDICIARY.
§ 574. The chief difference between the national and
state courts, relates to the jurisdiction and the number of
courts. The state courts have jurisdiction over all those
things of which the courts of the United States have not
jurisdiction, and some of which they have, In fact, the
jurisdiction of the state courts extends over the whole mass
of municipal objects, both small and great. It extends
over debts and obligations, both minute and large ; over
all contracts and over all crimes, except those exclusively
against the laws of the United States, which must be tried
in the United States district courts.
§ 575. In regard to the number of courts, we have seen
that the United States courts are, the Supreme, the Circuit,
and the District. In the same manner, the states usually
have a Supreme Court, or Court of Appeals, which makes
the final decision of all litigated law points. So they
have, generally, Circuit Courts of inferior jurisdiction,
and also County Courts. So far, there is a perfect analo-
gy between the arrangement of the state and national
courts. But in the states there are two or three other
classes of courts. In nearly all the states there are spe-
cial Criminal Courts, for the sole purpose of trying crim-
inal prosecutions. So, also, there are, in incorporated
towns, usually a Municipal Court, for the trial of causes
within the incorporated jurisdiction. But the chief differ-
212 STATE GOVERNMENTS.
ence between state and national courts is, perhaps, the in-
stitution of Justices of the Peace. They are local
judges, holding a court usually for the township only, and
of small jurisdiction in regard to the magnitude of the
property involved in suit. Narrow as their jurisdiction
is, it may be affirmed that they transact the largest por-
tion of the judicial business of society. There are gen-
erally several in each township, and their courts are held
every day.
§ 576. The chief officer of the state courts is the
Sheriff. His is the most ancient office we have, and
probably originated in very remote antiquity. Among
the Anglo-Saxons of England, the Earls held the county
courts, and the Sheriff was the deputy of the Earl. The
Sheriff is the ministerial or executive officer of all the
courts held in the county. He must serve all process,
execute all writs, and furnish all escorts and force to ex-
ecute the judgments of the court. He is also a conserva-
tor of the peace, and is bound to arrest all who break, or
attempt to break, the peace. He is also the jailer of the
county, and must imprison and subsist, at the expense of
the county, all persons sentenced to imprisonment by or-
der of the court.
§ 577. The Constable is also another officer peculiar
to state courts. He is, properly, the ministerial officer of
the Justices of the Peace, and has the same duties within a
township, that a Sheriff has for a county, except that of jailer.
^ 578. From this statement we see that, as national
governments, the states have very little to do. All powers
of a general nature are vested in the general government.
Our work is now ended. It contains little ingenuity
and less novelty ; but the student should recollect, that
these are not the characteristics of truth and learning in
Constitutions and Jurisprudence: let him seek, rather, the
accuracy of the legal historian, and a correct delineation
of our political institutions. From the study of these, he
must ever go forth increased in knowledge, in love of lib-
erty, and the ardor of patriotism.
CONSTITUTIONAL LAW.
213
CONSTITUTIONAL LAW— ADDENDA.
§ 579. Since the first publication of this work, there
have been several decisions by the Supreme Court of the
United States, which have added new light in regard to
the true construction to be put on several clauses of the
Constitution. Some of these are here given for the bene-
fit of the student.
POWERS OF THE NATIONAL GOVERNMENT.
§ 580. The government of the Union is a government
of the people. It emanates from them. Its powers are
granted by them, and are to be exercised directly and for
their benefit. — Massachusetts vs. Rhode Island, 12 Pe-
ters, 657.
§ 581. The government of the Union is supreme with-
in its sphere of action. — lb.
EXECUTIVE POWER.
§ 582. The Circuit Court of the United States for the
District of Columbia, has a right to issue a mandamus on
the Post Master General of the United States. — Kendall
vs. Stokes et als., 12 Peters, 524.
PRIORITY OF UNITED STATES CLAIMS.
§ 583. The local laws of a state cannot contract the op-
erations of the United States' act giving priority in favor
of other creditors. — 9 Peters, 182.
CONSTRUCTION OF STATE STATUTES.
§ 584. It is the peculiar province and privilege of the
state courts to construe their own statutes, and it is no
part of the functions of the Supreme Court to review their
decisions or assume jurisdiction over them, on the pre-
tence that their judgments have impaired the obligation
of contracts. The Supreme Court can only restrict the
unconstitutional legislation of the states. — 5 Howard, 317,
16 Peters, 525.
214 CONSTITUTIONAL LAW.
PROHIBITIONS ON STATES.
§ 585. States are not prohibited from passing retrospec-
tive laws, even though they may affect prior rights ; but
only ex post facto laws. — Watson vs. Mercer, 8 Peters, 88.
REGULATIONS OF COMMERCE.
§ 586. The law of New York, requiring the masters
of vessels carrying passengers into New York, to make a
report of their names, ages, places of birth, &c, affixing
a penalty to the violation of that law, and requiring the
master to give bonds, was held to be constitutional in re-
gard to the report of names, &c. The act is not a regu-
lation of commerce, but a regulation of police. — City of
New York vs. Milne, 1 1 Peters, 1 02.
§ 587. Persons are not the subjects of commerce, and a
law regulating their introduction is not affected by the
reasoning which is founded upon the power given to Con-
gress to regulate commerce. — 11 Peters, 102.
§ 588. The law prohibiting the introduction of slaves
into the state of Mississippi, as merchandise and for sale,
is constitutional. — Groves vs. Slaughter, 15 Peters, 449.
§ 589. The state restrictions upon the sale of spiritous
liquors in less than a given quantity, are constitutional. —
5 Howard, 504.
RELIGIOUS LIBERTY.
§ 590. The Constitution of the United States makes no
provision for protecting the citizens of the several states
in the enjoyment of religious liberty. This is left to the
Constitutions and laws of the states. — 3 Howard, 589.
WRIT OF HABEAS CORPUS.
§ 591. The Supreme Court of the United States has no
original jurisdiction to award the writ of habeas corpus to
bring up the body of an infant child, alleged to be unlaw-
fully detained. — Ex parte Barry, 2 Howard, 65.
EXPATRIATION.
§ 592. Allegiance, may be dissolved by the mutual
consent of the government and its citizens. — 3 Peters, 99.
CONSTITUTIONAL LAW. 215
§ 593. The general doctrine is, that no person can, by
an act of his own, cut off his allegiance. — 3 Peters, 242.
FUGITIVE SLAVES.
§ 594. The owner of a fugitive slave has the same
right to seize and take him in a state to which he has es-
caped or fled, that he had in the state from which he es-
caped ; and it is well known that this right to seizure, or
recapture, is universally acknowledged in the slave-hold-
ing states. — Prigg vs. Pennsylvania, 16 Peters, 539.
21(3 THE UNITED STATES.
CONSTITUTION OF THE UNITED STATES.
Preamble.
We, the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquillity, provide for the com-
mon defence, promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity, do ordain and establish this Con-
stitution for the United States of America.
ARTICLE I.
Of the Legislature.
section i.'
1. All legislative powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of Re-
presentatives.
SECTION II.
1. The House of Representatives shall be composed of members
chosen every second year by the people of the several states; and the
electors in each state shall have the qualifications requisite for electors
of the most numerous branch of the state legislature.
2. No person shall be a representative who shall not have attained
to the age of twenty-five years, and been seven years a citizen of the
United States, and who shall not, when elected, be an inhabitant of
that state in which he shall be chosen.
3. Representatives and direct taxes shall be apportioned among the
several states which may be included within this union, according to
their respective numbers, which shall be determined by adding to the
whole number of free persons, including those bound to service for a
term of years, and excluding Indians not taxed, three-fifths of all other
persons. The actual enumeration shall be made within three years
after the first meeting of the Congress of the United States, and within
every subsequent term of ten years, in such manner as they shall by
law direct. The number of representatives shall not exceed one for
every thirty thousand, but each state shall have at least one representa-
tive; and until such enumeration shall be made, the state of New-
Hampshire shall be entitled to choose three; Massachusetts, eight;
Rhode Island and Providence Plantations, one; Connecticut, five;
CONSTITUTION OF 017
New York, six; New Jersey, four; Pennsylvania, eight; Delaware,
one ; Maryland, six ; Virginia, ten ; North Carolina, five ; South Caro-
lina, five; and Georgia, three.
4. When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill such
vacancies.
5. The House of Representatives shall choose their speaker and
other officers; and shall have the sole power of impeachment.
SECTION III.
1. The Senate*of the United States shall be composed of two sena-
tors from each state, chosen by the legislature thereof, for six years;
and each senator shall have one vote.
2. Immediately after they shall be assembled, in consequence of the
first election, they shall be divided as equally as may be into three
classes. The seats of the senators of the first class shall be vacated at
the expiration of the second year, of the second class at the expiration
of the fourth year, and of the third class at the expiration of the sixth
year, so that one-third may be chosen every second year; and if
vacancies happen by resignation or otherwise, during the recess of
the legislature of any state, the executive thereof may make tempo-
rary appointments until the next meeting of the legislature, which shall
then fill such vacancies.
3. No person shall be a senator who shall not have attained to the
age of thirty years, and been nine years a citizen of the United States,
and who shall not, when elected, be an inhabitant of the state for
which he shall be chosen.
4. The Vice-President of the United States shall be President of the
Senate, but shall have no vote, unless they be equally divided.
5. The Senate shall choose their other officers, and also a president
pro tempore, in the absence of the .Vice-President, or when he shall
exercise the office of President of- the United States.
6. The Senate shall have the sole power to try all impeachments:
when sitting for that purpose, the}' shall be on oath or affirmation.
When the President of the United States is tried, the Chief-Justice
shall preside ; and no person shall be convicted without the concurrence
of two-thirds of the members present.
7. Judgment in cases of impeachment shall not extend further than
to removal from office, and disqualification to hold and enjoy any office
of honor, trust, or profit under the United States ; but the party convict-
ed shall nevertheless be liable and subject to indictment, trial, judgment,
and punishment, according to law.
SECTION IV.
1. The times, places, and manner of holding elections for senators
and representatives, shall be prescribed in each state by the legislature
thereof; but the Congress may at any time, by law, make or alter such
regulations, except as to the places of choosing senators.
19
218 THB UNITED STATES.
2. The Congress shall assemble at least once in every year, and such
meeting shall be on the first Monday in December, unless they shall by
law appoint a different day. C* ,
j, . ,j fit +<\sO& *«2 r
/V/*-/to^t SECTION V.
1. Each House shall be the judge of the elections, returns, and quali-
fications of its own members, and a majority of each shall constitute a
quorum to do business; but a smaller number may adjourn from day to
day, and may be authorized to compel the attendance of absent mem-
bers, in such manner and under such penalties as each House may
provide. ■
2. Each House may determine the rules of its proceedings, punish its
members for disorderly behavior, and, with the concurrence of two-
thirds, expel a member.
3. Each House shall keep a journal of its proceedings, and from time
to time publish the same, excepting such parts as may, in their judgment,
require secrecy ; and the yeas and nays of the members of either House,
on any question, shall, at the desire of one-fifth of those present, be en-
tered on the journal.
4. Neither House, during the session of Congress, shall, without the
consent of the other, adjourn for more thnn three days, nor to any other
place than that in which the two Houses shall be silting.
SECTION VI.
1. The senators and representatives shall receive a compensation for
their services, to be ascertained by law, and paid out of the treasury of
the United States. They shall, in all cases, except treason, felony, and
breach of the peace, be privileged from arrest during their attendance at
the session of their respective Houses, and in going to and returning
from the same ; and for any speech or debate in either House, they shall
not be questioned in any other place.
2. No senator or representative shall, during the time for which he
was elected, be appointed to any civil office under the authority of the
United States, which shall have been created, or the emoluments where-
of shall have been increased during such time; and no person holding
any office under the United States, shall be a member of either House
during his continuance in office.
SECTION VII.
1. All bills for raising revenue shall originatp in the House of Repre-
sentatives; but the Senate may propose or concur with amendments as
on other bills.
2. Every bill which shall have passed the House of Representatives and
the Senate, shall, before it become a law, be presented to the President of
the United States; if he approve, he shall sign it; but if not, he shall re-
turn it, with his objections, to that House in which it shall have originated,
who shall enter the objections at large on their journal, and proceed to
reconsider it. If, after such reconsideration, two-thirds of that House
CONSTITUTION OP * 219
shall agree to pass the bill, it shall be sent, together with the objections,
to the other House, by which it shall likewise be reconsidered, and if
approved by two-thirds of that House, it shall become a law. But in
all such cases the votes of both Houses shall be determined by yeas and
nays; and the names of the persons voting for and against the bill shall
be entered on the journal of each House respectively. If any bill shall
not be returned by the President within ten days (Sundays excepted)
after it shall have been presented to him, the same shad be a law, in
like manner as if he had signed it, unless the Congress by their adjourn-
ment prevent its return, in which case it shall not be a law.
3. Every order, resolution, or vote, to which the concurrence of the
Senate and House of Representatives may be necessary (except on a
question of adjournment), shall be presented to the President of the
United States; and before the same shall take effect, shall be approved
by him, or being disapproved by him, shall be repassed by two-thirds of
the Senate and House of Representatives, according to the rules and
limitations prescribed in ihe case of a bill.
SECTION VIII.
The Congress shall have power —
1. To lay and collect taxes, duties, imposts, and excises, to pay the
debts and provide for the common defence and general welfare of the
United States; but all duties, imposts, and excises shall be uniform
throughout the United States:
2. To borrow money on the credit of the United States:
3. To regulate commerce with foreign nations, and among the seve-
ral states, and with the Indian tribes:
4. To establish an uniform mode of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States :
5. To coin money, regulate the value thereof, and of foreign coin,
and fix the standard of weights and measures:
6. To provide for the punishment of counterfeiting the securities and
current coin of the United States:
7. To establish post-offices and post-roads :
8. To promote the progress of science and useful arts, by securing, for
limited times, to authors and inventors, the exclusive right to their re-
spective writings and discoveries:
9. To constitute tribunals inferior to the supreme court:
10. To define and punish piracies and felonies committed on the
high seas, and offences against the law of nations :
11. To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water:
12. To raise and support armies ; but no appropriation of money for
that use shall be for a longer term than two years;
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and
naval forces :
15. To provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions :
220
THE UNITED STATES.
16. To provide for organizing, arming, and disciplining the militia,
and for governing such part of them as may be employed in the service
of the United States, reserving to the states respectively the appoint-
ment of the officers, and the authority of training the militia according
to the discipline prescribed by Congress :
17. To exercise exclusive legislation in all cases whatsoever, over
such district (not exceeding ten miles square), as may, by cession of
particular states, and the acceptance of Congress, become the seat of
the government of the United States ; and to exercise like authority over
al. places purchased by the consent of the legislature of the state in which
the same shall be, for the erection of forts, magazines, arsenals, dock-
yards, and other needful buildings: — And,
18. To make all laws which shall be necessary and proper for carry-
ing into execution the foregoing powers, and all other powers vested by
this Constitution in the government of the United States, or in any de
partment or officer thereof. •? , / -,•£*
SECTION I*. '
1. The migration or importation of such persons as any of the states
now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the year one thousand eight hundred and eight; but a
tax or duty may be imposed on such importation, not exceeding ten'dol-
lars for each person.
2. The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may re-
quire it.
3. No bill of attainder or ex post facto law shall be passed.
4. No capitation or other direct tax shall be laid, unless in proportion
to the census or enumeration herein before directed to be taken.
5. No tax or duty shall be laid on articles exported from any state.
6. No preference shall be gh'en by any regulation of commerce or
revenue to the ports of one state over those of another : nor shall ves-
sels bound to, or from one state, be obliged to enter, clear, or pay duties
in another.
7. No money shall be drawn from the treasury but in consequence of
appropriations made by law ; and a regular statement and account of
the receipts and expenditures of all public money shall be published
from time to time.
8. No title of nobility shall be granted by the United States: and
no person holding any office .of profit or trust under them, shall, without
the consent of the Congress, accept of any present, emolument, office,
or title of any kind whatever, from any king, prince, or foreign state.
SECTION X.
1. No state shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal ; coin money; emit bills of credit;
make any thing but gold and silver coin a tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the obli-
gation of contracts; or grant any title of nobility.
CONSTITUTION OF 221
2. No state shall, without the consent of the Congress, lay any imposts
or duties on imports or exports, except what may be absolutely neces-
sary for executing its inspection laws; and the net produce of all duties
and imposts, laid by any state on imports or exports, shall be for the
use of the treasury of the United States ; and all such laws shall be
subject to the revision and control of the Congress.
3. No state shall, without the consent of the Congress, lay any duty
of tonnage, keep troops or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay.
ARTICLE II.
Of the Executive.
SECTION I.
1. The executive power shall be vested in a President of the United
States of America. He shall hold his office during the term of four
years, and, together with the Vice-President, chosen for the same
term, be elected as follows :
2. Each state shall appoint, in such manner as the legislature thereof
may direct, a number of electors, equal to the whole number of sena-
tors and representatives to which the state may be entitled in the Con-
gress: but no senator or representative, or person holding an office
of trust or profit under the United States, shall be appointed an elector.
[3. The electors shall meei in their respective states, and vote by ballot for
two persons, of whom one at least shall not be an inhabitant of the same
state with themselves. And they shall make a list of all the persons voted
for, and of the number of votes for each ; which list they shall sign and cer
tify, and transmit sealed to the seat of government of the United States,
directed to the President of the Senate. The President of the Senate shall,
in the presence of the Senate and House of Representatives, open all the cer-
tificates, and the votes shall then be counted. The person having the greatest
number of votes shall be the President, if such number be a majority of the
whole number of electors appointed ; and if there be more than one who
have such majority, and have an equal number of votes, then the House of
Representatives shall immediately choose by iallol one of them for Presi-
dent; and if no person have a majority, then from the five highest on the
list, the said House shall in like manner choose the President. But in choos-
ing the President, the votes shall be taken by states, the representation from
each state having one vote: A quorum for this purpose shall consist of a
member or members from two thirds of the states, and a majority of all the
states shall be necessary to a choice. In every case, after the choice of the
President, the person having the greatest number of votes of the electors
shall betlie Vice-President. But if there should remain two or more who
have equal votes, the Senate shall choose from them by ballot the Vice-
President.]*
3. The Congress may determine the time of choosing the electors,
and the day on which they shall give their votes; which day shall be
the same throughout the United States.
4. No person, except a natural born citizen, or a citizen of the
United States at the time of the adoption of this Constitution, shall be
* This clause is annulled. See AniendmentSi Art. 12.
19*
222 TIIE UNITED STATES.
eligible to the office of President ; neither shall any person be eligible to
that office who shall not have attained to the age of thirty-five years,
and been fourteen years a resident within the United States.
5. In case of the removal of the President from office, or of his
death, resignation, or inability to discharge the powers and duties of
the said office, the same shall devolve on the Vice-President ; and the
Congress may by law provide for the case of removal, death, resigna-
tion, or inability, both of the President and Vice-President, declaring
what officer shall then act as President, and such officer shall act
accordingly, until the disability be removed, or a President shall be
elected.
6. The President shall, at stated times, receive for his services a
compensation, which shall neither be increased nor diminished during
the period for which he shall have been elected, and he shall not receive
within that period any other emolument from the United States, or any
jf them.
7. Before he enter on the execution of his office, he shall take the
following oath or affirmation : —
UI do solemnly swear (or affirm), that 1 will faithfully execute the office
of President of the United States, and will, to the best of my ability,
preserve, protect, and defend the Constitution of the United States."
SECTION II.
1. The President shall be commander-in-chief of the army and navy
of the United States, and of the militia of the several states when called
into the actual service of the United States; he may require the
opinion, in writing, of the principal officer in each of the executive de-
partments, upon any subject relating to the duties of their respective
offices, and he shall have power to grant reprieves and pardons for
offences against the United States, except in cases of impeachment.
2. He shall have power, by and with the advice and consent of the
Senate, to make treaties, provided two-thirds of the senators present
concur; and ne shall nominate, and by and with the advice and con-
sent of the Senate, shall appoint ambassadors, other public ministers
and consuls, judges of the supreme court, and all other officers of the
United States whose appointments are not herein otherwise provided
for, and which shall be established by law : but the Congress may by
law vest the appointment of such inferior officers as they think proper
in the President alone, and in the courts of law, or in the heads of de-
partments.
3. The President shall have power to fill up all vacancies that may
happen during the recess of the Senate, by granting commissions which
shall expire at the end of their next session.
&ECTION III.
1. He shall, from time to time, give to the Congress information
of the state of the Union, and recommend to their consideration
such measures as he shall judge necessary and expedient; he may,
on extraordinary occasions, convene both Houses, or either of them,
CONSTITUTION OP
223
and ir case of disagreement between them, with respect to the
time of adjournment, he may adjourn them to such time as he shall
think proper; he shall receive ambassadors and other public ministers;
he shall take care that the laws be faithfully executed, and shall com-
mission all the officers of the United States.
SECTION IV.
1. The President, Vice-President, and all civil officers of the United
States, shall be removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemeanors.
ARTICLE III.
Of the Judiciary.
SECTION I.
1. The judicial power of the United States shall be vested in one
supreme court, and in such inferior courts as the Congress may, from
time to time, ordain and establish. The judges, both of the supreme
and inferior courts, shall hold their offices during good behavior, and
shall, at stated times, receive for their services a compensation, which
shall not be diminished during their continuance in office.
SECTION II.
1. The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority ; — to all
cases affecting ambassadors, other public ministers, and consuls; — to
all cases of admiralty and maritime jurisdiction; — to controversies to
which the United States shall be a party; — to controversies between
two or more states; — between a state and citizens of another state; —
between citizens of different states; — between citizens of the same
state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens, or subjects.
2. In all cases affecting ambassadors, other public ministers, and
consuls, and those in which a state shall be party, the supreme
court shall have original jurisdiction. In all the other cases before
mentioned, the supreme court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such regulations as
the Congress shall make.
3. The trial of all crimes, except in cases of impeachment, shall be by
jury ; and such trial shall be held in the state where the said crimes
shall have been committed; but when not committed within any state,
the trial shall be at such place or places as the Congress may by law
have directed.
section m.
1. Treason against the United States shall consist only in levying
war against them, or in adhering to their enemies, giving them aid
and comfort.
224 THE UNITED STATES.
2, No person shall be convicted of treason unless on the testimony
of two witnesses to the same overt act, or on confession in open court.
3. The Congress shall have power to declare the punishment of
treason, but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attainted.
ARTICLE IV.
Miscellaneous.
SECTION I.
1. Full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And the
Congress may, by general laws, prescribe the manner in which such
acts, records, and proceedings shall be proved, and the effect thereof.
SECTION II.
1. The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.
2. A person charged in any state with treason, felony, or other crime,
who shall flee from justice, and be found in another state, shall, on de-
mand of the executive authority of the state from which he fled, be deliv-
ered up, to be removed to the state having jurisdiction of the crime.
3. No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law or regu-
lation therein, be discharged from such service or labor, but shall be de
livered up on claim of the party to whom such service or labor may be
due.
SECTION III,
1. New states may be admitted by the Congress into this Union
but no new state shall be formed or erected within the jurisdiction
of any other state, nor any state be formed by the junction of two or
more states, or parts of states, without the consent of the legislatures of
the states concerned, as well as of the Congress.
2. The Congress shall have power to dispose of and make needful
rules and regulations respecting the territory or other property belonging
to the United States; and nothing in this Constitution shall be so con
strued as to prejudice any claims of the United States, or of any par
ticular state.
SECTION IV.
1. The United States shall guaranty to every state in this Union a
republican form of government, and shall protect each of them against
iavasion ; and on application of the legislature, or of the executive
(vJhen the legislature cannot be convened), against domestic violence
ARTICLE V.
Of Amendments.
1. The Congress, whenever two-thirds of both Houses shall deem it
necessary shall propose amendments to this Constitution, or, on the ap-
CONSTITUTION OF
225
plication of the legislatures of two-thirds of the several states, shall
call a convention for proposing amendments, which, in either case,
shall be valid to all intents and purposes, as part of this Constitution,
when ratified by the legislatures of three-fourths of the several states,
or by conventions in three-fourths thereof, as the one or the other mode
of ratification may be proposed by the Congress; provided that no
amendment, which may be made prior to the year one thousand eight
hundred and eight, shall in any manner affect the first and fourth
clauses in the ninth section of the first article ; and that no state, witr
out its consent, shall be deprived of its equal suffrage in the Senate.
ARTICLE VI.
Miscellaneous.
1. All debts contracted, and engagements entered into, before the
adoption of this Constitution, shall be as valid against the United
States under this Constitution as under the Confederation.
2. This Constitution, and the laws of the United States, which shall
be made in pursuance thereof; and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme
law of the land; and the judges in every state shall be bound thereby,
any thing in the Constitution or laws of any state to the contrary
notwithstanding.
3. The senators and representatives before mentioned, and the mem-
bers of the several state legislatures, and all executive and judicial
officers, both of the United States and of the several states, shall be
bound by oath or affirmation, to support this Constitution ; but no reli-
gious test shall ever be required as a qualification to any office or public
trust under the United States.
ARTICLE VII.
Of the Ratification.
1. The ratification of the conventions of nine states, shall be sufficient
for the establishment of this Constitution between the states so ratify-
ing the same.
Done in convention, by the unanimous consent of the States present, tho
seventeenth day of September, in the year of our Lord one thousand
seven hundred and eighty-seven, and of the independence of the United
States of America the twelfth. In witness whereof we have hereunto
subscribed our names.
GEO. WASHINGTON, President,
and Deputy from Virginia.
New Hampshire — John Langdon, Nicholas Gilman. Massachu-
setts— Nathaniel Gorham, Rufus King. Connecticut — William S.
Johnson, Roger Sherman. New York — Alexander Hamilton. New
Jersey — William Livingston, David Brearley, William Paterson, Jon*
athan Dayton. Pennsylvania — Benjamin Franklin, Thomas Mifflin,
Robert Morris, George Clymer, Thomas Fitzsimmons, Jared Ingersoll,
James Wilson, Gouverneur Morris. Delaware — George Read, Gun*
226 TIIE UNITED STATES.
ning Bedford, jun., John Dickinson, Richard Bassett, Jacob Bioom.
Maryland — James M'Henry, Daniel of St. Thomas Jenifer, Daniel
Carroll. Virginia — John Blair, James Madison, jun. North Caro-
lina— William Blount, Richard Dobbs Spaight, Hugh Williamson.
South Carolina — John Rutledge, Charles Cotesworth Pinckney,
Charles Pinckney, Pierce Butler. Georgia — William Few, Abraham
Baldwin. Attest: >
William Jackson, Secretary. $
[Congress at their first session under the Constitution, held in the
city of New York, in 1789, proposed to the legislatures of the seve-
ral States twelve amendments, ten of which only were adopted.
They are the first ten of the following amendments; and they
were ratified by three-fourths, the constitutional number, of the
States, on the 15th of December, 17.01. The llth amendment was
proposed at the first session of the third Congress, and was declared
in a message from the President of the United States to both
Houses of Congress, dated the 8th of January, 1798, to have been
adopted by the constitutional number of States. The 12th amend-
ment, which was proposed at the first session of the eighth Con-
gress, was adopted by the constitutional number of States in the
year 1804, according to a public notice by the Secretary of State,
dated the 25th of September, 1804.]
AMENDMENTS
To the Constitution of the United States, ratified according to the provision*
of the Fifth Article of the foregoing Constitution.
Article I. Congress shall make no law respecting an establishmenl
of religion, or prohibiting the free exercise thereof; or abridging ths
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the government for a redress of grievances
Art. II. A well regulated militia being necessary to the security of
a free state, the right of the people to keep and bear arms shall not be
infringed.
Art. III. No soldier shall, in time of peace, be quartered in any house
without the consent of the owner, nor in time of war but in a manner tc
be prescribed by law.
Art. IV. The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Artt V. No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, o- in the militia, when
CONSTITUTION OF 227
in actual service in time of war or public danger; nor shall any person
be subject, for the same offence, to' be twice put in jeopardy of life or
limb; nor shall be compelled, in any criminal case, to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use with-
out just compensation.
Art. VI. In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the na-
ture and cause of the accusation ; to be confronted with the witnesses
against him ; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defence.
Art. VII. In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by a jury shall be otherwise re-examined in any court of
the United States, than according to the rules of the common law.
Art. VIII. Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Art. IX. The enumeration, in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.
Art. X. The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Art. XI. The judicial power of the United States shall not be con-
strued to extend to any suit, in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by citi-
zens or subjects of any foreign state.
Art. XII. The electors shall meet in their respective States, and vote
by ballot for President and Vice-President, one of whom, at least, shall
not be an inhabitant of the same state with themselves; they shall
name in their ballots the person voted for as President, and in distinct bal-
lots the person voted for as Vice-President, and they shall make distinct
lists of all persons voted for as President, and of all persons voted for
as Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the government
of the United States, directed to the President of the Senate. The
President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates, and the votes shall then be
counted ; the person having the greatest number of votes for President
shall be the President, if such number be a majority of the whole num-
ber of electors appointed ; and if no person have such majority, then
from the persons having the highest numbers, not exceeding three, on the
list of those voted for as President, the House of Representatives shall
choose immediately, by ballot, the President. But in choosing the Pre-
sident, the votes shall be taken by states, the represent!) tion from each
state having one vote ; a quorum for this purpose shall consist of a
member or members from two-thirds of the states, and a majority of
all the states shall be necessary to a choice. And if the House of Re-
228 THE UNITED STATES.
preservatives shall not choose a President, whenever the right of choice
shall devolve upon them, before the fourth day of March next follow-
ing, then the Vice-President shall act as President, as in the case of the
death or other constitutional disability of the President. The person
having the greatest number of votes as Vice-President shall be the Vice-
President, if such number be a majority of the whole number of electors
appointed, and if no person have a majority, then from the two highest
numbers on the list the Senate shall choose the Vice-President; a quo
rum for the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to the office of Presi-
dent, shall be eligible to that of Vice-President of the United States.
[Note 1. Another amendment was proposed as article XIII. at the second
session of the eleventh Congress, but not having been ratified by a sufficient
number of the states, has not become valid, as a part of the Constitution of
the United States. It is erroneously given as a part of the Constitution, in
page 74, vol. I. Laws of the United States, published by Bioren &. Duane,
in 1815.]
'Note 2. The Constitution, as above printed, has been carefully compared
with the copy in the Laws of the United States, published by authority, and
also with one in the National Calendar for the year 1826, which was copied
from the roll in the Department of State.]
[Note 3. The ratification of the Constitution by the state of New Hamp-
shire, being the 9th in order, was laid before Congress on the 2d of July, 1788,
and, with the ratifications of the other states, was referred to a committee, to
report an act for carrying the new system into operation. An act for this
purpose was reported on the 14th of the same month, and was passed on the
13th of September following.]— American Almanac, 1831.
ORDINANCE op 1787- 229
ORDINANCE OF 1787
The following Ordinance is the fundamental law of the States of
Ohio, Indiana, Illinois, Michigan and Wisconsin. It is fundamental,
because passed prior to the Constitution, — and is a matter of com-
pact between the several states vesting rights, — which the Constitu-
tion, by its terms, did not control. It was reported by Nathan Dane,
celebrated, both as the author of this Ordinance, and of a Digest of
American Law.
IN CONGRESS, JULY 13, 1787-
An Ordinance for the government of the territory of the United States, north-
west of the river Ohio.
Be it ordained, by the United States in Congress assembled, that
the said territory, for the purposes of temporary government, be one
district; subject, however, to be divided into two districts, as future cir-
cumstances may, in the opinion of Congress, make it expedient.
Be it ordained, by the authority aforesaid, that the estates both of
resident and non-resident proprietors in the said territory, dying intes-
tate, shall descend to, and be distributed among their children, and the
descendants of a deceased child, in equal parts; the descendants of a
deceased child or grand-child, to take the share of their deceased parent,
in equal parts, among them ; and where there shall be no children or
descendants, then in equal parts to the next of kin, in equal degree; and
among collaterals, the children of a deceased brother or sister of the intes-
tate shall have, in equal parts, among them, their deceased parent's share ;
and there shall in no case be a distinction between kindred of the whole
and half blood ; saving in all cases to the widow of the intestate, her
third part of the real estate for life, and one third part of the personal
estate ; and this law relative to descents and dower, shall remain in full
force until altered by the legislature of the district. And until the gov-
ernor and judges shall adopt laws as hereinafter mentioned, estates in
the said territory may be devised or bequeathed by wills in writing,
signed and sealed by him or her, in whom the estate may be (being of
full age), and attested by three witnesses; and real estates may be
conveyed by lease and release, or bargain and sale, signed, sealed and
delivered by the person, being of full age, in whom the estate may be,
and attested by two witnesses, provided such wills be duly proved, and
such conveyances be acknowledged, or the execution thereof duly
230' ORDINANCE OF 1787-
proved, and be recorded within one year after proper magistrates, courts,
and registers shall be appointed for that purpose ; and personal property
may be transferred by delivery, saving, however, to the French and Ca-
nadian inhabitants, and other settlers of the Kaskaskias, Saint Vincents,
and the neighboring villages, who have heretofore professed themselves
citizens of Virginia, their laws and customs now in force among them,
relative to descent and conveyance of property.
Be it ordained, by the authority aforesaid, that there shall be ap-
pointed from time to time, by Congress, a governor, whose commission
shall continue in force for the term of three years, unless sooner re-
voked by Congress; he shall reside in the district, and have a freehold
estate therein, in one thousand acres of land, while in the exercise of his
office. There shall be appointed from time to time, by Congress, a sec-
retary, whose commission shall continue in force for four years, unless
sooner revoked ; he shall reside in the district, and have a freehold es-
tate therein, in five hundred acres of land, while in the exercise of his
office; it shall be his duty to keep and preserve the acts and laws pass-
ed by the legislature, and the public records of the district, and the pro-
ceedings of the governor in his executive department; and transmit au-
thentic copies of such acts and proceedings, every six months, to the
secretary of Congress. There shall also be appointed a court to consist
of three judges, any two of whom to form a court, who shall have a
common law jurisdiction, and reside in the district, and have each
therein a freehold estate in five hundred acres of land, while in the ex-
ercise of their offices; and their commissions shall continue in force
during good behavior.
The governor and judges, or a majority of them, shall adopt and pub-
lish in the district, such laws of the original states, criminal and civil,
as may be necessary, and best suited to the circumstances of the district,
and report them to Congress, from time to time, which laws shall be in
force in the district until the organization of the general assembly there-
in, unless disapproved of by Congress; but afterwards, the legislature
shall have authority to alter them as they shall think fit.
The governor for the time being, shall be commander-in-chief of the
militia, appoint and commission all officers in the same, below the rank
of general officers. All general officers shall be appointed and commis-
sioned by Congress.
Previous to the organization of the general assembly, the governor
shall appoint such magistrates and other civil officers, in each county
or township, as he shall find necessary for the preservation of the peace
and good order in the same. After the general assembly shall be or-
ganized, the powers and duties of magistrates and other civil officers
shall be regulated and defined by the said assembly; but all magistrates
and other civil officers, not herein otherwise directed, shall, during the
continuance of this temporary government, be appointed by the governor.
For the prevention of crimes and injuries, the laws to be adopted or
made, shall have force in all parts of the district, and for the execution
of process, criminal and civil, the governor shall make proper divisions
thereof; and he shall proceed from time to time, as circumstances may
ORDINANCE OF 1787. 231
require, to lay out the parts of the district in which the Indian titles
shall have been extinguished, into counties and townships, subject,
however, to such alterations as may thereafter be made by the legis-
lature.
So soon as there shall be five thousand free male inhabitants, of full
age, in the district, upon giving proof thereof to the governor, they shall
receive authority, with time and place, to elect representatives from
their counties or townships, to represent them in the general assembly:
provided, that for every five hundred free male inhabitants there shall
be one representative, and so on progressively with the number of free
male inhabitants, shall the right of representation increase, until the
number of representatives shall amount to twenty-five, after which the
number and proportion of representatives shall be regulated by the legis-
lature ; provided, that no person be eligible or qualified to act as a repre-
sentative, unless he shall have been a citizen of one of the United States
three years, and be a resident in the district, or unless he shall have re-
sided in the district three years, and in either case shall likewise hold in
his own right, in fee simple, two hundred acres of land within the same ;
provided also, that a freehold in fifty acres of land in the district, having
been a citizen of one of the states, and being resident in the district, or
the like freehold and two years residence in the district, shall be neces-
sary to qualify a man as an elector of a representative.
The representative thus elected, shall serve for the term of two years,
and in case of the death of a representative, or removal from office, the
governor shall issue a writ to the county or township for which he was
a member, to elect another in his stead, to serve for the residue of
the term.
The general assembly, or legislature, shall consist of the governor,
legislative council, and a house of representatives. The legislative coun-
cil shall consist of five members, to continue in office five years, unless
sooner removed by Congress, any three of whom to be a quorum, and
the members of the council, shall be nominated and appointed in the
following manner, to wit : as soon as representatives shall be elected,
the governor shall appoint a time and place for them to meet together,
and, when met, they shall nominate ten persons, residents in the district,
and each possessed of a freehold in five hundred acres of land, and re-
turn their names to Congress; five of whom Congress shall appoint and
commission to serve as aforesaid ; and whenever a vacancy shall happen
in the council, by death or removal from office, the house of representa-
tives shall nominate two persons, qualified as aforesaid, for each vacan-
cy, and return their names to Congress, one of whom Congress shall
appoint and commission for the residue of the term ; and every five
years, four months at least before the expiration of the time of service
of the members of council, the said house shall nominate ten persons,
qualified as aforesaid, and return their names to Congress, five of whom
Congress shall appoint and commission to serve as members of the coun-
cil five years, unless sooner removed. And the governor, legislativ'8
council, and house of representatives, shall have authority to make laws
in all cases for the good government of the district, not repugnant to the
232 ordinance OF 1787.
principles and articles in this ordinance established and declared. And
all bills having passed by a majority in the house, and by a majority
in the council, shall be referred to the governor for his assent ; but no
bill or legislative act whatever, shall be of any force without his assent.
The governor shall have power to convene, prorogue, and dissolve the
general assembly, when in his opinion it shall bo expedient.
The governor, judges, legislative council, secretary, and such other
officers as Congress shall appoint in the district, shall take an oath or
affirmation of fidelity, and of office — the governor before the president
of Congress, and all other officers before the governor. As soon as a
legislature shall be formed in the district, the council and house, assem-
bled in one room, shall have authority by joint ballot to elect a delegate
to Congress, who shall have a seat in Congress, with the right of de-
bating, but not of voting, during this temporary government.
And for extending the fundamental principles of civil and religious
liberty, which form the basis whereon these republics, their laws and
constitutions, are erected ; to fix and establish those principles as the
basis of all laws, constitutions, and governments, which forever hereaf-
ter shall be formed in the said territory ; to provide also for the esta-
blishment of states, and permanent government therein, and for their
admission to a share in the federal councils on an equal footing with
the original states, at as early periods as may be consistent with the
general interest:
It is hereby ordained and declared, by the authority aforesaid, that
the following articles shall be considered as articles of compact between
the original states and the people and states in the said territory, and
forever remain unalterable, unless by common consent, to wit :
Article I. No person, demeaning himself in a peaceable and order-
ly manner, shall ever be molested on account of his mode of worship
or religious sentiments in the said territory.
Art. II. The inhabitants of the said territory shall always be enti-
tled to the benefit of the writ of habeas corpus, and of the trial by
jury; of a proportionate representation of the people in the legislature,
and of judicial proceedings according to the course of the common law;
all persons shall be bailable unless for capital offences, where the proof
shall be evident, or the presumption great; all fines shall be moderate,
and no cruel or unusual punishments shall be inflicted ; no man shall
be deprived of his liberty or property, but by the judgment of his
peers, or the law of the land ; and should the public exigencies make
it necessary for the common preservation to take any person's property,
or to demand his particular services, full compensation shall be made for
the same ; and in the just preservation of rights and property, it is un
derstood and declared, that no law ought ever to be made, or have
force in the said territory, that shall in any manner whatever, interfere
with, or affect private contracts or engagements, bona fide, and withoul
fraud previously formed.
Art. III. Religion, morality, and knowledge, being necessary to
good government and the happiness of mankind, schools and the means
of education shall forever be encouraged. The utmost good faith shali
ORDINANCE OF 1787- 233
always be observed towards the Indians; their lands and property shall
never be taken from them without their consent ; and in their property,
rights, and liberty, they never shall be invaded or disturbed, unless
in just and lawful wars authorized by Congress; but laws founded in
justice and humanity, shall, from time to time, be made, for preventing
wrongs being done to them, and for preserving peace and friendship
with them.
Art. IV. The said territory, and the states which may be formed
therein, shall forever remain a part of this confederacy of the United
States of America, subject to the articles of confederation, and to such
alteration therein, as shall be constitutionally made; and to all the acts
and ordinances of the United States in Congress assembled, con-
formable thereto. ., The inhabitants and settlers in the said territory,
shall be subject to pay a part of the federal debts contracted, or .to be
contracted, and a proportional part of the expenses of government, to
be apportioned on them, by Congress, according to the same common
rule and measure by which apportionments thereof shall be made on
the other states ; and the taxes for paying their proportion, shall be laid
and levied by the authority and direction of the legislatures of the dis-
trict, or districts, or new states, as in the original states, within the
time agreed upon by the United States in Congress assembled. The
legislatures of those districts, or new states, shall never interfere with
the primary disposal of the soil by the United States in Congress assem-
bled, nor with any regulations Congress may find necessary for securing
the title in such soil to the bona fide purchasers. No tax shall be im-
posed on lands the property of the United States; and in no case shall
non-resident proprietors be taxed higher than residents. The navigable
waters leading into the Mississippi and St. Law.rence, and the carrying
, places between the same shall be common highways, and forever free,
as well to the inhabitants _of .the said territory, as to, the citizens of- the. „
** United States, and those of any other states that may be admitted into
the confederacy, without any tax, impost, or duty therefor.
Art. V. There shall be formed in the said territory, not less than*
three, nor more than .five states; 'afYd the boundaries of thS states, as »%
soon as Virginia shall alter her act of .session and consent fo the same,
shall become fixed and established as follows, to wij : The western
jst'ate^in.the said territory shall be* bounded, ay the^ Mississippi, .t.h<4 \
k Ohio, and Wabash rivers; a direct line drawn, from the Wabash and
Post Vincents due north to the territorial line between the United
States and Canada,, and by the said territoriaUjlige^to the I^ake-jojf the
Wood? and Mississippi. The middle state shall be bounded by the
laid direct line, the Wabash from Post Vincents to the Ohio, by the
Ohio, by a direct fine drawn due north from the mouth of the Great
Miami to the said territorial line, and by said terrritorial line. The
* eastern state*shaiJ»be".bounded by the last-mentioned direct line, the
Ohio, Perrrfsylvania, and the said territorial line; provided, however,
and it is further understood and declared, that the boundaries of these
three states shall be subject so far to be altered, that if congress shall here-
after find if expedient, they shall have authority to form, one or two
20*
/
234
ORDINANCE OF 1787-
states in that part of the said territory which lies north of an east anxl
west line drawn through the southerly bend or extreme of Lake Michi-
gan: and whenever any of the said states shall have sixty thousand
free inhabitants therein, such state shall be admitted by its delegates,
into the Congress of the United States, on an equal footing with the
original states, in all respects whatsoever; and shall be at liberty to
form a permanent constitution and state government : Provided, the
constitution and government so to be formed, shall be republican, and
in conformity to the principles contained in these articles : and so far
as it can be consistent with the general interest of the confederacy,
such admission shall be allowed at an earlier period, and when there
may be a less number of free inhabitants in the state than sixty thousand.
Art. VI. There shall be neither slavery nor involuntary servitude in
the said territory, otherwise than in punishment of crimes whereof the
party shall have been duly convicted: Provided, always, that any
person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original states, such fugitive may be lawfully
reclaimed and conveyed to the person claiming his or her labor or ser-
vice as aforesaid.
Be it ordained, by the authority aforesaid, that the resolutions of the
23d of April, 1784, relative to the subject .of this ordinance, be, and the
same are hereby reoealed and declared null and void.
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